9911796707
TMI Blog2008 (1) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... of counsel for the appellant from House No. 1327 Sector 4, Panchkula to House No. 1667, Sector 4, Panchkula and during this shifting this brief was inadvertently put among the admitted cases by the clerk and skip from the mind of the counsel and his claerk. And now when the client asked about the status the it was searched and the same was found in the store room in admitted cases. 3. In view of the allegations made in paragraph 2 of the application, I called report from the Registry. From the Report, it appears that the appeal was presented on 26.11.2005. The Registry raised the following objections: 1. Opening sheet not filed. 2. Substantial question of law be mentioned in grounds of appeal. 3. Page marking not done. 4. Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended after the expiry of 10 days for another 10 days and so on and, in any case, not exceeding 40 days in the aggregate. 7. In the present case, after the receipt of the appeal from the Registry on 24.12.2005 it was neither refiled in the Registry within 10 days nor any extension in time was sought from the Deputy Registrar concerned in terms of Rule 5(1) and the appeal has been refiled only on 20.12.2007 i.e. after 688 days. The applicant in paragraph 2 of the application has misrepresented the facts by saying that the appeal was originally filed on 26.11.2005 and the same was returned by the Registry lastly on 24.12.2007 with some objections. This statement is totally false and contrary to the record. On presentation of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot impressed by this argument, it is the duty of the party also to follow his/her case. It cannot be believed that the applicant-appellant has not bothered to enquire about his case for a period of more than two years. If he has not taken any interest, it is sheer negligence on the part of the applicant-appellant. In the absence of there being any details about the shifting of the office of the counsel and the time when it came to the notice of the party/counsel, the grounds urged in paragraph 3 of the CM. Application cannot be taken on its face value. 10. Learned Counsel appearing for the appellant has further stated that Rule 5 of the Rules should not be construed strictly and once an appeal is filed within limitation its delay in refi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing. 11. Reliance is also placed upon Karnail Singh v. Piara Singh (2002-3)132 P.L.R. 189. In this case a similar plea was taken by the applicant regarding the missing of the brief in the office of the Advocate and the explanation tendered by Advocate was accepted by the Court. Delay of 698 days in re-filing the appeal was accordingly condoned and the Court made the following observations: ...As referred to above, the appeal was filed within limitation. The appeal was returned by the office with the certain objections. There was delay in re-filing the appeal. In the application under Section 151 CPC, seeking condonation of delay, in refiling the appeal, the point taken is that the previous Clerk namely Jai Parkash, had left the job ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of the original filing. In Karnail Singh's case (supra), the Court accepted the explanation of the appellant that the file was mixed with the decided case by the Clerk who left the job with the Advocate and on efforts being made, the file was traced by the Clerk later. However, in the present case, it is not the case of the applicant-appellant that after the file was misplaced any effort was made by the learned Counsel for his clerk to trace the file. Rather, the clear case is that the learned Counsel as well as his clerk forgot about the case. Even the applicant-appellant (client) did not bother to enquire about his case from his counsel. This is a case of total callousness and negligence on the part of the applicant/appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi v. International Security and Intelligency Agency Ltd. , the Hon'ble Supreme Court has held as follows: 21...It has to be remembered that law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross-objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate court the same grounds which he could have otherwise done by way of filing an appeal. This extended perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
