Daulat Ram Ram Kishan Dass vs Union of India (UOI) and Others

N.K. Kapoor, J.—This judgment shall dispose of two regular second appeals No. 1119 of 1981 and 1245 of 1981 as identical question of fact and law are involved in both these appeals.

The plaintiff filed an appeal against the judgment and decree of the trial Court accompanied by an application u/s 5 of the Limitation Act that the delay in filing the appeal be condoned. As per averments made in the application, it was stated that the plaintiff-applicant had a serious attack of "Malig Hypertension an ineffective Hpathities" and so had to be admitted under the treatment of one Dr. Sutendra Gaur. He remained as an indoor patient from January 16 to February 18, 1980 and hence this delay in filing the appeal. To support his contention, certificate issued by Dr. Sutinder Gaur of Kurukshetra dated February 8, 1980 and February 19, 1980 were annexed with the application. The application was duly supported by an affidavit.

The appellate authority did not find merit in this plea of the appellant on the ground that as per certificate placed on record, there is no indication that he remained as indoor patient and secondly both the certificate bear only one serial No. i.e. 64/80. Similarly, the appellate Court came to the conclusion that the story set up by the applicant that funds could not be arranged is merely a story for the amusement of the Court. In any case, the other partner of the firm could very well arrange the funds for filing the appeal and so even if Ram Kishan Dass fell ill this is no ground for condoning the delay u/s 5 of the Limitation Act.

Challenging the judgment of the additional District Judge, Learned counsel for the appellant argued that the Additional District Judge had gravely erred in law in not accepting the version given by the appellant and that too for no valid reason. According to the counsel, the appellant was under the care of an expert on account of a serious illness and was confined to bed during all these days. With a view to prove this fact, the appellant placed on record certificate issued by the doctor dated February 8, 1980 and February 19, 1980. The Court having accepted the certificate has yet chosen to ignore on the ground that the reference No. in both these certificate is 64/80. According to the counsel, it is not a case of error. Since the plaintiff had been admitted in the hospital vide reference No. 64/80, this reference continued till he is discharged and precisely for this reason, even in respect of second certificate it bears the same reference No. The appellate Court has misread these two certificate as it has been observed that there is no indication in the certificate that the patient remained as an indoor patient. According, to the counsel, as per this certificate the doctor has clearly mentioned that the patient is being kept under complete bed rest w.e.f. 16.1.1980 and will further be kept under bed rest, for another two weeks w.e.f. 8.2.1980. In any case, even if the Court intended to probe the matter any further, it was incumbent upon the court to grant a fair opportunity to the appellant to prove its case.

I have heard the learned counsel and perused the impugned order of the Additional District Judge, Admittedly, there was delay in filing the appeal and so while filing the appeal, an application u/s 5 of the Limitation Act along with duly sworn affidavit was filed for condoning the delay. In support of his plea, two certificates dated 8.2.1980 and 19.2.1980 issued by Dr. Sutendra Gaur have been placed on record. Prima facie, there is nothing to doubt the authenticity of the document. Otherwise, too the application is duly supported by an affidavit. Thus, in case the Court intended to enquire any further, it was incumbent upon the Court to call upon the appellant-plaintiff to prove his contention according to law. The Court somehow did not follow this procedure and chose to examine on its own thereby depriving the appellant of his valuable right. I find the judgment of the Additional District Judge unsustainable on this ground alone. Accordingly, I accept both the appeals, set aside the judgment of the Additional District Judge and remand the cases with the direction that the Court shall examine the matter afresh. Parties to appear before the Additional District Judge, Karnal, on 21.9.1995. Since the matter is fairly old the same be decided expeditiously preferably within three months from the receipt of the copy of the judgment.