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2008 DIGILAW 334 (GAU)

Fulchand Kurmi v. Chandrabati Kurmi

2008-05-07

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
Aftab H. Saikia, J 1. Heard Mr. I.H. Laskar, the learned counsel for the applicant. None appears on behalf of respondent despite notice as indicated in the office note dated 30.4.2008. 2. This is an application under section 5 of the Limitation Act, 1963 ('the Act') for condonation of delay of 77 days in filing the related Matrimonial Appeal against the judgment and order dated 19.9.2007 passed by the learned Principal Judge, Family Court, Silchar in F.C. (Crl.) No. 361/06 whereby the petitioner (husband-2nd party) was directed to pay Rs. 700 per month to the wife/1st party as maintenance allowance under section 125, Cr.P.C. 3. To make out a case for "sufficient cause' to condone the delay, the following averments have been made by the applicant in paragraphs 2 and 3 of this Misc. Application which run as under : "2. That the applicant begs to state that the aforesaid delay has been caused under most bona fide and genuine circumstances as the applicant was suffering from acute peptic ulcer with malena and the Medical Officer, Joypur S.H.C. Cachar advise the applicant I or complete rest for 6 weeks on 10.10.2007 and again on 20.11.2007, the applicant was again advised to take complete rest for another six week,.. Copies of the prescription of the Medical Officer, Joypur S.H.O., Cachar are annexed as Annexures I and II. 3. That the applicant was under treatment of the said Medical Officer since 10.10.2007 till 29.12.2007 and accordingly, a Certificate was issued in this regard by the said M.O. showing the fitness of the applicant to travel. Thereafter, the applicant contacted Ids lawyer at Guwahati who asked the applicant to meet him on 2.1.200H, i.e., the day of reopening of the hon'ble High Court after vacation due to has non-availability, and accordingly, the applicant met his counsel on 2.1.2008, and accordingly, the applicant met his counsel on 2.1.2008 and handed over the brief and his engaged counsel took two days time to draft the appeal and ultimately on 5.1.2008 the said appeal was filed. A copy of the Medical Certificate dated 30.12.2007 is annexed as Annexure-III." 4. From careful perusal of the above statements and averments, it appears that the delay in question needs 1 o be condoned on the sole ground of sickness of the applicant who claimed to have been suffering form acute peptic ulcer syndrome with malnna. A copy of the Medical Certificate dated 30.12.2007 is annexed as Annexure-III." 4. From careful perusal of the above statements and averments, it appears that the delay in question needs 1 o be condoned on the sole ground of sickness of the applicant who claimed to have been suffering form acute peptic ulcer syndrome with malnna. But amazes us herein is that though the impugned order was passed on 19.9.2007, the petitioner has stated to have fallen from 10,10.2007 and he was under medical treatment till 29.12.2007. 5. We have also perused the photocopies of medical certificate dated 30.12.2007 along with two prescriptions dated 10.10.2007 and 20.11.2007 of the attending physician. 6. It is further notices that the application applied for certified copy of the impugned judgment and order dated 1D.9.2007 only on 24.9.2007 and the date for notifying the requisite folio was also fixed on the same date. But the applicant supplied the requisite stamps and folio only on 17.11.2007 although, as it appears, he was nut sick in between 19.9.2007 to 10.10.2006. The certified copy of the judgment was made ready on 17.11.2007 itself but he took delivery of the same only on 10.12.2007 when, according to his own statement made paragraph-3 mentioned above, he was under medical treatment till 29.12.2007. 7. In view of the above, the ground of sickness so put forth in support of this condonation petition cannot be accepted as 'sufficient cause' for condonation of delay in question. 8. It is settled principle of law that when the delay is not properly, satisfactorily and convincingly explained, the same cannot be condone. Even the court cannot condone the delay on the sympathetic ground. [See D. Gopinathan Filial v. State of Kerala and Another, (2007) 2 SCC 322 ]. 9. Consequently, this condonation petition stands dismissed.