1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Civil Application No. (CAF) No. 1636/2010 in First Appeal St. No. 10554/2010 (Shri Shardulsingh Uttamsingh Chahal .vs. Vijaykumar R. Singhaniya & ors.) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. R.D. Bhuibhar, Advocate for Applicant. Mr. M.I. Dhatrak, Advocate for Respondent no.1. Mr. S.A. Dutonde, Advocate for Respondent no.5. .......... CORAM : S.A. BOBDE & P.D. KODE, JJ. DATE OF RESERVING THE ORDER : NOVEMBER 26, 2010 DATE OF PRONOUNCING THE ORDER : DECEMBER 07, 2010 1. Heard. 2. The applicant-original defendant no.3 in Special Civil Suit No.89 of 2002 of the Court of Civil Judge, Senior Division, Pandharkawada, District – Yavatmal has prayed for condoning the delay of 1141 days in preferring an appeal against the judgment and decree passed against him in the said suit. 3. The non-applicant 1 had filed the said suit against the applicant, his four brothers and a sister for partition and separate possession, upon the contention of having purchased half share in the suit property i.e. 2 plot no.7 with double storeyed house thereon at Pandharkawada by the registered sale deed dated 6.11.1999 for consideration of Rs. 8 lacs. 4. The said suit was decreed by judgment and order delivered on 8.2.2007. The applicant had applied for certified copy of the same only on 13.11.2009 and had received the same on 21.11.2009. 5. The learned counsel for the applicant urged that the applicant was operated on 20.8.2007 for serious ailment of large perenial abscess at the hospital of Dr. Kawalkar at Yavatmal. Even after his discharge from the hospital on 27.8.2007 he was required to consult from time to time said Doctor as he had become very much weak. The applicant was not keeping well since year 2007 and was under treatment of Dr. T.F. Badodekar, Consulting Physician at Pandharkavda. As such due to ill-health till last week of May, 2010, the applicant could not seek legal advice regarding further course of action to be taken. After obtaining the legal advice, he handed over the papers for preferring the appeal. Due to financial constraints the applicant required considerable time for making arrangement of court fees as by then had spent substantial amount upon the medical treatment. 6. The learned counsel urged that delay thus having occurred in preferring an appeal being unintentional and/or having occurred due to the reasons beyond the control of the applicant, the same deserves 3 to be condoned. It was further urged that non- condoning of the same would only deprive an opportunity to the applicant in testing the merits of decree which is unsustainable in law for several reasons enumerated by him in appeal memo submitted along with the application. It was urged that condoning the delay is unlikely to cause any prejudice to the non- applicant no.1, as even thereafter he will be having all the opportunity to contest the merits of the appeal. 7. The learned counsel for non-applicant no.1 urged that the application preferred clearly lacks any merits as the applicant has miserably failed to show sufficient cause in not preferring appeal within the prescribed period of limitation. It was urged that averments in the application preferred apparently reveals gross negligence on the part of applicant in not taking any steps for preferring an appeal within the period of limitation. It was urged that the same is apparent as the applicant had even not bothered to apply for obtaining certified copy of judgment and decree to be appealed within the period of limitation and had allowed to be expired. It was urged that applicant had continued with such carelessness even thereafter. 8. The learned counsel for non-applicant no.1 by placing reliance upon the following observation made by the Apex Court in the case of Ajit Singh Thakur Singh and another .vs. State of Gujarat reported in (1981) 1 SCC 495 : 4 “It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause.” urged that in light of the said observation, the cause tried to be canvassed on behalf of the applicant can neither be said to be a sufficient cause within the meaning of Section 5 of the Limitation Act nor for such a cause gross delay of 1141 days can be condoned. It was urged that the same is obvious as the applicant has failed to establish his alleged sickness being of such a nature that due to the same, he was prevented from taking steps for preferring the appeal within the prescribed period of limitation. It was urged that the medical certificate produced and so also the matters stated in the application preferred failed to make out any such a case. It was thus urged that the application devoid of merit be dismissed. 9. The careful examination of the sole medical certificate produced by the applicant reveals that the matters therein are blissfully vague to support the 5 contentions canvassed on behalf of the applicant. The matters from the same does not transcend beyond stating that the applicant is suffering from labile hypertension with chronic acid peptic disease and was operated in part for perinal abscess at Yavatmal and having been advised rest intermittently for his illness. 10. Significantly enough that the said certificate issued on 3.6.2010 even fails to depict the precise date or even the period in which the applicant was operated for the ailment suffered. Even the said certificate does not specify of the applicant being advised continuously the rest or the period for which he was advised such a rest. The applicant has not bothered to produce certificate of a doctor who had operated him or any other medical papers leading to a conclusion that he was suffering from such ailment because of which he could not have taken any steps for preferring the appeal soon after passing of decree until he was discharged. Needless to add that no explanation is forth-coming for non production of such a medical certificate. 11. Similarly the applicant has failed to explain the reason because of which an application for certified copy of a judgment and decree to be appealed was not made soon after the delivery of judgment on 8.2.2007 and was made on 13.11.2009 i.e. after passage of prolong period about 3 years. Needless to add that even assuming that the applicant was suffering from illness, in event of himself being a diligent person , he could have made such an application through his 6 Advocate who was representing him before the trial Court or through any other person. All the same clearly supports the submission canvassed by the learned counsel for non-applicant no.1 that the applicant was non-diligent person not interested in preferring an appeal and as such has allowed passing of the period of limitation. 12. In absence of production of medical papers or the certificates for a period after operation till May 2010 , it is difficult to accept that during the said period the applicant was suffering from such an illness because of which he could not have preferred the appeal. The same is the case regarding the stand taken on behalf of the applicant about the time required for obtaining legal advice or for arranging the court fees. Needless to add, even with the said regard the applicant has failed to explain every day delay occurred during the said period. 13. Thus considering all the aforesaid, it difficult to accept that the applicant was not non-diligent person and gross delay of 1141 days had occurred for the reasons beyond the control of the applicant. We also find it difficult to accede with the submission that the suit of non-applicant no.1 being filed for partition and possession, no prejudice would be caused to him in event of the delay being condoned as he would be getting an opportunity to contest the merits of an appeal. Suffice it to say that right accrued to the non- applicant no.1 due to conduct of non-diligent applicant for prolong period of more than three years cannot be 7 wiped away without there existing any rhyme or reason. 14. In the premises aforesaid, the application sans merits deserves to be dismissed and stands dismissed accordingly. JUDGE JUDGE halwai