Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1556 (ALL)

IKRAR AHMAD v. SHIV DEVI

2018-07-17

RAJNISH KUMAR

body2018
JUDGMENT Hon’ble Rajnish Kumar, J.—Learned counsel for the appellant had sought time to file supplementary-affidavit on 4.7.2018. Today he submits that he does not want to file supplementary-affidavit and prayed for hearing. 2. Heard learned counsel for the appellant. 3. The appellant has preferred the present appeal against the judgment and award dated 14.3.2016 passed by Motor Accident Claims Tribunal/Additional District Judge in Claim Petition No. 6900194 of 2011: Shiv Devi v. Ikrar Ahmad and others with delay. The appellant has filed an application for condonation of delay in filing the appeal. 4. Submission of learned counsel for the appellant is that the learned Tribunal had passed the judgment and award dated 14.3.2016 dismissing the application for restoration and the appellant after coming to know about the award had filed an application under Order 9 Rule 13 CPC, which was dismissed on 13.11.2017. When the appellant got the knowledge about the order dated 13.11.2017,he contacted to a counsel of lower Court for filing an appeal before the High Court. After some time he came to know that the appeal has not been filed and his counsel advised him to engage an advocate of High Court to prefer an appeal. He contacted to an advocate of High Court and filed the present time barred appeal. 5. The submission of learned counsel for the appellant is that the appellant has filed the appeal within limitation from the order dated 13.11.2017 passed on his application under order 9, Rule 13 of Civil Procedure Code vide Misc. Case No. 244-C of 2012, therefore, there is no deliberate mistake by the appellant and it is only a human error and mis-understanding of the appellant. Therefore, the delay in filing the appeal may be condoned. 6. I have considered the submission of the appellant. The appellant had appeared in the Claim Petition No. 690014 of 2011 before the Motor Accident Claims Tribunal and filed his written statement. Thereafter, he willfully absented from the proceedings. The learned Tribunal had passed the judgment and award dated 14.3.2016. The appellant had not disclosed in the application as to when and how he got the knowledge of the judgment and award dated 14.3.2016 and again about the order dated 13.11.2017 passed on the application of the appellant under Order 9 Rule 13 CPC. It appears that the appellant had full knowledge of the proceedings and orders passed thereon. The appellant had not disclosed in the application as to when and how he got the knowledge of the judgment and award dated 14.3.2016 and again about the order dated 13.11.2017 passed on the application of the appellant under Order 9 Rule 13 CPC. It appears that the appellant had full knowledge of the proceedings and orders passed thereon. Learned Tribunal after considering his application has also found that the appellant had knowledge of the judgment and award dated 14.3.2016. The Claims Tribunal had dismissed the application on 13.11.2017 recording the finding as under: “The record reveals that as admitted by the applicant he had appeared in the case and filed Waqalatnama as well as written statement. He did not care about the progress of the case after filing W.S. The defence grounds available to this application were used by OP No. 2 as his application C-22 moved under Section 170 of M.V. Act was allowed on 18.11.2015. Now the applicant cannot take any benefit of his own wilful negligence and he was given ample opportunity by the Court. He had full knowledge, hence there is no sufficient ground to set aside the judgment dated 14.3.2016. The application is liable to be dismissed.” 7. Thus after 13.11.2017, this appeal has been filed on 31.1.2018 that too after more than two months but no sufficient reason has been indicated in the application for the delay of 1 year 29 days. The appellant had filed an application under order 9, Rule 13 CPC after passing of the limitation of filing the appeal i.e. after about 11 months so the appellant is not entitled for any benefit of the said proceedings instituted after expiry of limitation for filing appeal, particularly, in the facts of the present case. In the present case the appellant had appeared and filed written statement and thereafter willfully absented from the proceedings. The appellant has failed to disclose as to when and how he came to know about the orders which indicates that the appellant had full knowledge of proceedings and orders passed and he has no plausible explanation for the delay. It is also clear from the fact that after seeking time for supplementary-affidavit, learned counsel for the appellant refused to file. 8. It is also clear from the fact that after seeking time for supplementary-affidavit, learned counsel for the appellant refused to file. 8. The Apex Court in the case of Mani Devraj Shah v. Municipal Corporation of Brihan; (2012) 5 SCC 157 , has held as under: “23.What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concoted or he is thoroughly negligent in prosecuting his cause,then it would be a legitimate exercise of discretion not to condone the delay.” 9. In view of above, the explanation given by the appellant in the application does not seem to be bona fide. It appears that he had filed the application under Order 9 Rule 13 CPC before the Claims Tribunal only to create a ground for condonation of delay. The argument of appellant that the appeal has been filed within time from the date of order passed on application under Order 9 Rule 13 CPC is totally mis-conceived and repelled. The limitation is to be counted from the date of judgment and award and accordingly the appellant has to give explanation from the said date, which he has failed to give. The appellant has failed to give any sufficient cause, what to say of day by day explanation. 10. The application for condonation of delay is hereby rejected. 11. Accordingly the appeal is dismissed. No order as to costs.