Bans Raj Tiwari and Another vs Jai Narayan and Another

Hon''ble Sibghat Ullah Khan, J.—List of fresh cases revised. Sri T.B. Pandey, learned counsel for appellant does not appear. It is shocking that this Second Appeal has been filed after more than 24 years. It was got reported about a year before i.e. on 23.12.2010. The reason given in the affidavit of Ram Sagar Tiwri, the sole appellant filed in support of delay condonation application is nothing but a cock and bull story. It has been stated in para 2 as follows:

That although in the aforesaid case appeal was dismissed on 24.3.1987 and after dismissal of the same the appellant handed over the certified copy of the judgment and decree of Court below alongwith entire record to Sri S.D.N.Singh Advocate and the appellant was in bonafide hope that his appeal was filed and when the case will be listed for hearing he will be inform by his counsel.

Thereafter, it is stated in para 4 of the affidavit as follows:

That in the year 2009 the appellant went at Allahabad to take bath in Sangam during Mauni Amawasa and went at the house of his counsel then this facts came in to the knowledge of the applicant that his counsel is not alive due to that reason he tried to get his file from his office but the same could not be possible although the applicant tried their level best and return at his home because he was not aware about the detail of his case.

Thereafter, in para 5 it is mentioned that the deponent contacted the present counsel, Sri T.B. Pandey and sent him certified copy of the judgment passed by lower appellate court in April 2009 who in November 2009 told the appellant that no appeal had been filed. Thereafter, in para 7 it is stated as follows:

That the Second Appeal was presented reporting on 13.12.2010 in which stamp reporter making report about the delay of 23 years, and 196 days but as the parties was interested to compromise the matter due to that reason the appellant again instructed his present counsel not to filed the present Second Appeal but after taking all steps no compromise could be taken between the parties due to that reason the appellant again instructed the present counsel to filed the present Second Appeal before this Hon''ble Court.

There is no mention that apart from handing over certified copies of the judgments and the file to late Sri S.D.N. Singh, learned counsel any expenses and fees was paid by the deponent to the late counsel, who was a retired District Judge.

It is horrible that wild allegations including allegation of dishonesty are being levelled against the deceased advocate. The Court does not believe a single word of it. Believing such type of allegations by an advocate (Sri T.B. Pandey in the instant case) levelled by a client against a dead advocate amounts to eating the flesh of the dead colleague. In any case there is absolutely no explanation for the delay, firstly, from April 2009 and then from December 2010 when appeal was got reported. Deliberately false affidavit has been filed. Accordingly, delay condonation application is rejected.

It is a fit case where direction for lodging F.I.R. for filing false affidavit should have been issued. However, as the deponent is 70 years of age hence this direction is not being issued.

As delay condonation application has been dismissed today hence appeal is dismissed as barred by time.