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TMI Blog1992 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay. The medical certificate would show that the petitioner was being treated for right sided Hemiparesis from 10-4-1990 involving the facial muscles also . Since the petitioner was suffering from paralysis, a serious ailment, as evidenced by the medical certificate and since there is no evidence contra disproving the same, in the interest of justice we are inclined to condone the delay in the facts and circumstances of the case. Accordingly, the delay is condoned and the stay petition is directed to be listed for hearing as per law. Sd/- (V.P. Gulati) Member Sd/- (S. Kalyanam) Member 4. [Per: V.P. Gulati, Member (T)]. I have given a careful thought to the order recorded by my learned Brother and I am of the view that the applicant has not made out a case for condonation of the delay. I observe the matter had earlier come up for hearing when the Bench pointed out to the learned Consultant for the applicant that the certificate produced in support of the plea that the applicant was sick and was not in a position to file the appeal within the time, did not show that the applicant was bedridden and was in such a state of health that he could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal within time. The delay of 87 days in the filing of the appeal is not condoned. Since the delay is not condoned, I also dismiss the appeal as barred by limitation. Sd/- (V.P. GULATI) MEMBER 26-3-1991. POINT OF DIFFERENCE Whether in the facts and circumstances of the case the delay of 87 days should be condoned as held by Member (Judicial) or the delay should not be condoned and consequently the appeal should be dismissed as barred by limitation as held by Member (Technical). Sd/- (S. KALYANAM) MEMBER Sd/- (V.P. GULATI) MEMBER 26-3-1991 5. [Per : Shri Harish Chander, Vice President]. - There is a difference of opinion between learned Brother Shri S. Kalyanam, Member (Judicial) and learned Brother Shri V.P. Gulati, Member (Technical). The following point of difference has been referred to me : Whether in the facts and circumstances of the case the delay of 87 days should be condoned as held by Member (Judicial) or the delay should not be condoned. and consequently the appeal should be dismissed as barred by limitation as held by Member (Technical). 6. The appeal has been filed being aggrieved from the order passed by the Collector of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terated the contentions made in the application for condonation of delay and also the order passed by the Judicial Member and pleaded for the acceptance of the application. 10. I have heard both the sides and also have gone through the facts and circumstances of the case. Both the learned Brothers, Shri S. Kalyanam, Member (Judicial) as well as Shri V.P. Gulati, Member (Technical), have referred to the medical certificate, a photo copy of which has been attached along with the application for condonation of the delay. Original medical certificate has also been produced before me. The learned Judicial Member has accepted the medical certificate. The genuineness of the medical certificate has not been doubted by both the learned Brothers. The medical bills were also produced in the open court and were perused by the Members. As already discussed above, the last date for filing of the appeal was 20th April, 1990. The applicant is not to explain his conduct from the date of the receipt of the order till the last date of expiry of limitation in view of the observations of the Hon ble Supreme Court in the case of Ramlal Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 SC 361 (S.C.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f March, 1989 and filed the appeal on 4th April, 1989. It is a settled law that the appellant is not expected to explain the delay till the last date of limitation. The Hon ble Supreme Court in the case of Ramlal and Others v. Rewa Coalfields Ltd. reported in AIR 1962 Supreme Court 361 has held that the appellant is not expected to explain his conduct in the late filing of the appeal till the last date of limitation and after expiry of the limitation the appellant has to explain each and every day s delay. In the matter before us, the appellant was sick. He has filed an affidavit which is already reproduced above. The revenue has not filed any counter-affidavit and has also not filed any evidence which leads us to the inference that the contentions made by the applicant in the application for condonation of delay are incorrect. The application is duly supported with a medical certificate from Dr. D. Sen Gupta, Senior Physician, Dr. R.M.L. Hospital, New Delhi. Accordingly, we are of the view that the applicant was prevented by sufficient cause in the late filing of the appeal. The Hon ble Calcutta High Court in the case of Karali Charan Sarma v. Apurba Krishna Bajpayi and Others, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treet, Bi.Bi. Kulam Madurai-2. Phone: 41224 16-7-1990 This is to certify that Mr. E. Mohamed Saleem, 62, Namaikuravar Koil St., Madurai, was under my treatment for Right sided Hemiparesis from 10-4-1990 involving the facial muscles also and I was treating him in my clinic. Now he is fit. He was under my treatment up to 16-7-1990. Sd/- Dr. V.R. Issac, M.S. Ortho D. Ortho. Assistant Surgeon, Regd. No. 16294 (A.M.A.) GOVT. RAJAJI HOSPITAL MADURAI-625002." A simple perusal of the medical certificate shows that the applicant was undergoing treatment for Right sided Hemiparesis from 10th April, 1990 involving the facial muscles also and the applicant was under treatment up to 16th July, 1990. Dr. V.R. Issac is an Assistant Surgeon vide Regd. No. 16294 (A.M.A.), Govt. Rajaji Hospital, Madurai - 625002. The genuineness of the certificate, as already mentioned above, has not been doubted. In view of the observations I am of the view that the applicant was prevented by sufficient cause in the late submission of the appeal. I agree with the conclusion of Shri S. Kalyanam, Member (Judicial), and order that the delay of 87 days in the filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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