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2012 DIGILAW 1507 (ALL)

Nafees Ahmad @ Nafees v. Suman Pandeny

2012-07-09

ANIL KUMAR SHARMA, RAKESH TIWARI

body2012
JUDGMENT Rakesh Tiwari and Anil Kumar Sharma, JJ In the instant appeal, the appellant has challenged the award dated 07.10.2004 passed by M.A.C.T./Additional District Judge, Court No.1, Etawah in M.A.C.P. No. 225 of 2003. 2. The office has reported that appeal is beyond time by seven years and 146 days. 3. We have heard learned counsel for the applicant on the application for condonation of delay in filing the appeal. 4. In the affidavit filed in support of the application under section 5 of the Limitation Act, it has been stated that: "2. That the claim petition filed by the respondent nos. 1 to 5 was decreed exparte against the appellant vide judgment/order dated 07.10.2011. The appellant had no knowledge of the same and upon gaining knowledge moved an application under Order 9 Rule 13 of C.P.C. along with section 5 of Limitation Act. 3. That the appellant had stated in his application before the claim Tribunal how he was defrauded by the Advocate Sri S.H. Saxena, whom he had engaged for defending him in the Tribunal. However, the application was dismissed vide judgment/order dated 14.08.2008 for want of prosecution. The appellant had no knowledge about the said dismissal order till May, 2011, when the recovery came to the appellant. He rushed to Etawah on 28.05.2011 and upon gaining knowledge from the records of the court, he moved an application for recalling order dated 28.05.2011. The said application was rejected vide judgment/order dated 14.09.2011 against which the appellant preferred writ petition no. 58270 of 2011 before this Court which was dismissed vide judgment/order dated 11.10.2011. 4. That the appellant preferred S.L.P. before the Hon'ble Supreme Court which too has been dismissed." 5. The above facts clearly shows that appellants filed application for setting aside the award dated 07.10.2004 along with application to condone the delay in filing the appeal in the year 2005 which was ultimately rejected on 14.09.2011. The appellant challenged the order by way of Writ-C no. 58270/2011 which was dismissed by this Court on 11.10.2011. This order was challenged before the Apex Court by way of Special Leave Petition which too had been dismissed. 6. Now the appellant has challenged the award by way of this first appeal from order and has pressed for condoning the delay in filing the appeal. 58270/2011 which was dismissed by this Court on 11.10.2011. This order was challenged before the Apex Court by way of Special Leave Petition which too had been dismissed. 6. Now the appellant has challenged the award by way of this first appeal from order and has pressed for condoning the delay in filing the appeal. The perusal of the impugned award shows that the appellant was served with summons of the claim petition, he sought time to file written statement. Thereafter he did not turn up and the case proceeded exparte against him. Learned Tribunal has awarded compensation of Rs. 7,39,100/- to the claimants and directed the Respondent No.6 to indemnify the award. However, the right of recovery of compensation paid by the respondent no.6 had been given to them. In the facts and circumstances of the case, we find no sufficient reason to condone the long delay of more then seven years in filing the appeal. It is a case of gross negligence and latches. 7. In view of above, the application for condonation of delay has no merit and is accordingly dismissed.