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2008 DIGILAW 703 (JHR)

National Insurance Co. Ltd. v. Runiya Binha

2008-07-09

D.P.SINGH, M.Y.EQBAL

body2008
Order Heard the counsel for the appellant. 2. This time barred appeal was filed on 16.6.2006. The appeal was barred by 55 days. After memo of appeal was filed, defect was pointed out including limitation. thereafter the case was listed on different dates i.e. on 18.7.2006, 30.4.2007, 20.11.2007, 4.2.2008 and 31.3.2008 for removing all the defects including filing of limitation petition. When defects were not removed, finally the appeal was listed before the Bench on 20.6.2008. On that day the Division Bench passed the following order: "20.6.2008:- Time till 23.6.2008, as payed for, is allowed for filing limitation petition. It is made clear that the period of limitation for the purpose of calculating the delay in filing this appeal shall be taken into account from the date of filing of the appeal till the date of filing of limitation petition." 3. The limitation petition was ultimately filed on 23.6.2008. In the light of the aforesaid order, the Stamp Reporter gave further report that the appeal is now barred by 793 days. Despite the aforesaid order dated 20.6.2008, the delay of 793 days in filing the appeal remained unexplained. There is no whisper about any reason for non-filing of the limitation petition from the date of filing of memo of appeal till the date of filing of the limitation petition. Rule 3A of Order XLI of Code of Civil Procedure (inserted by C.P.C. Amendment Act, 1976) is very specific on this point which reads as under: "3A. Application for condo-nation of delay.-(1) When an appeal is presented after the expiry of the period of limitation specified there-for, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period." . 4. From bare perusal of the aforesaid provision, it is manifestly clear that filing of limitation petition along-with the memo of appeal setting forth the facts on which the appellant relies to satisfy the court that he had sufficient case for not preferring the appeal within such period, has been made mandatory. 5. A practice has developed in this court that time barred appeals are filed without limitation petitions. 5. A practice has developed in this court that time barred appeals are filed without limitation petitions. It is only after repeated orders are passed by the Lawazima Board and the Bench, such limitation petitions are fifled after 2-3 years which results in pendency of the cases because of the fault of the parties or their lawyers. 6. In the light of the aforesaid provision, we are of the view that if the time barred memo of appeal is filed without accompanying the limitation petition, then the court must take it strictly and, in exceptional circumstances, delay is to be condoned if the limitation petition is filed subsequent to the filing of the memo of appeal. 7. Coming back to the instant case, as noticed above, the memo of appeal was filed on 16.6.2006 and the limitation petition has been filed on 23.6.2008 i.e. about two years after the filing of memo of appeal. In the limitation petition, as stated above, no explanation has been given for condoning the delay of two years in filing the limitation petition. Moreover, we have also gone into the merit of the appeal. We do not find any reason to interfere with the impugned award. 8. In the facts and circumstances of the case, we are not at all inclined to condone the delay in filing the appeal. The limitation petition is rejected. Consequently this appeal also stands dismissed as being time barred. 9. Let a copy of this order be sent to the Bar Association for general information to the lawyers. A copy of the order shall be affixed on the Notice Board of the Bar Association.