2014 (4) TMI 1302 - HC - Indian Laws

Condonation of delay in filing appeal - failure to produce medical certificate to prove the fact that she was bed ridden - HELD THAT - A careful perusal of the law laid down by the Supreme Court in various decisions, clearly revealed that to remove injustice the delay has to be condoned and should not rejected on technical grounds. In this case since the revision petitioner has given sufficient reason for condoning the delay, but the trial Court dismissed the application only on the main ground that the revision petitioner has not produced medical certificate to show that she was ill and her doctor advised her to take bed rest till 27.7.2006. The above said finding of the trial Court is perverse and illegal and hence, the order passed by the trial Court is to be set aside and the revision petition is to be allowed. In the result, the civil revision petition is allowed and the order passed by the trial Court is set aside and the delay of 440 days in filing the appeal is condoned and the above said application is allowed accordingly.

Summary

Issues involved:
1. Delay in filing the first appeal under Section 5 of the Limitation Act.
2. Dismissal of the delay condonation application by the trial Court.
3. Examination of reasons for delay and sufficiency of explanation.
4. Legal principles governing condonation of delay in filing appeals.

Issue 1: Delay in filing the first appeal under Section 5 of the Limitation Act
The civil revision petition was filed to set aside the fair order and decretal order dated 05.12.2007 passed in I.A. No. 56 of 2007 in ASCFR No. 2816 of 2007 on the file of the District Court, Udhagamandalam. The revision petitioner, the defendant in the original suit, filed the first appeal in ASCFR No. 2815 of 2007 along with an application in I.A. No. 56 of 2007 under Section 5 of the Limitation Act to condone the delay of 440 days in filing the first appeal. The delay was attributed to illness and subsequent inability to meet counsel due to medical advice, leading to communication gaps and engagement of new counsel for filing the appeal.

Issue 2: Dismissal of the delay condonation application by the trial Court
The trial Court dismissed the delay condonation application on 5.12.2007, after considering contentions from both sides. The respondent contended that the revision petitioner had suppressed material facts and made false averments regarding illness as the reason for delay. The trial Court found the application frivolous, willful, and deliberate, leading to dismissal. The revision petitioner approached the previous counsel, who expressed inability to conduct the case, and then engaged a new counsel to file the appeal with the delay condonation petition.

Issue 3: Examination of reasons for delay and sufficiency of explanation
The revision petitioner cited illness as the reason for delay in filing the first appeal, supported by medical advice and subsequent engagement of new counsel due to the previous counsel's refusal. The respondent disputed these claims, alleging suppression of material facts and lack of evidence to support the illness claim. The trial Court based its dismissal on the absence of medical evidence to prove the alleged illness and the possibility of contacting counsel via phone to file the appeal in time.

Issue 4: Legal principles governing condonation of delay in filing appeals
The revision petitioner argued that the trial Court dismissed the application on technical grounds and failed to consider the reasons provided for the delay. Citing legal precedents, the revision petitioner emphasized that the court's discretion in condoning delay should focus on the acceptability of explanations rather than the length of delay. The court should prioritize substantial justice over technical considerations, as refusing to condone delay can lead to injustice and defeat the cause of justice.

In conclusion, the High Court allowed the civil revision petition, setting aside the trial Court's order and condoning the delay of 440 days in filing the appeal. The Court found the trial Court's dismissal based on the absence of medical evidence to support the illness claim as perverse and illegal. Emphasizing the importance of removing injustice and prioritizing substantial justice over technical grounds, the High Court granted the delay condonation application, highlighting the need to consider explanations for delay rather than focusing solely on technical aspects.