Devi Dayal Sharma vs Hemant Kumar and Others

Aruna Suresh, J.

CM APPL. 5757/2009 (delay) in RSA 51/2009

By way of this application, appellant has sought condonation of delay of 1145 days in filing the appeal. Appellant had filed a suit for damages on 18.12.1997 against the Respondents on the grounds of circulation of defamatory pamphlets by the Respondents against him. The said suit was decreed by the trial court on 2.12.2002. Appellant had claimed damages of Rs.1,01,100/-. However, the Trial Court was pleased to award only Rs.1500/- as damages. Dissatisfied with the judgment and decree of the Trial Court, appellant filed first appeal on 7.5.2003. Said appeal was also dismissed on 1.12.2005. Present appeal has been filed by the appellant on 20.04.2009 along with this application.

In the application, reasons assigned for delay in filing the appeal are that the appellant''s wife is a chronic patient of diabetes and continues to be on medicine, that appellant lost his son aged about 40 years on 26.9.2008 due to heart-attack, that appellant, a practicing lawyer has been suffering from severe depression and could not file this appeal in time.

Documents annexed to the application are Glucose Test Reports of wife of the appellant for the period from 4.11.2005 to 6.01.2009. She being a patient of diabetes naturally has to remain on medicine to control her sugar. These reports do not suggest that her blood glucose was alarmingly high and she needed constant medical assistance from the appellant all the time. Rather, these reports indicate only marginal rise in blood glucose as against normal value. Undisputedly, she was never admitted in any hospital for treatment.

Appeal was filed on 20.04.2009 i.e. after about 3 months of the last prescription of medicine by the doctor to Santosh Sharma wife of the appellant. No medical report thereafter has been placed on record. As regards suffering of the appellant from severe depression, I find no document on record. It is also not indicated as to since when the appellant is suffering from severe depression which restrained him from filing the present appeal.

The Appellate Court has decided the appeal on 1.12.2005. Son of the appellant, as per the death report, died on 26.9.2008 i.e. almost after three years of the dismissal of the appeal. Period of limitation for filing an appeal is 90 days. Therefore, to say that appellant could not file the appeal in time because of the death of his son would be incorrect.

Mr. Parmil Kumar, learned counsel for the appellant has submitted that on 7.1.2006, appellant had filed the Review Petition against the order of the Appellate Court which was dismissed on 20.01.2007. Even this plea is of no help to the appellant. After dismissal of the Review Petition, appellant, who himself is a practicing lawyer, did not take any steps to get the appeal prepared and filed in the Court. Needless to say, son of the appellant Nagender Gaur was also a practicing lawyer and he was hail and hearty at the time when the Review Petition was dismissed.

Under these circumstances, appellant has miserably failed to explain the delay in filing this appeal. Under Order 41 Rule 3 (a) CPC appellant was required to show that he had sufficient cause for not preferring the appeal within the prescribed period. In this case, as discussed above, appellant has failed to show sufficient cause to the satisfaction of the Court for not preferring the appeal within the period of limitation. Hence, application is dismissed.

RSA 51/2009

Since application for condonation of delay has been dismissed, this appeal is not maintainable being barred by period of limitation, it is accordingly dismissed.