Pragilal vs State

A.P. Shrivastava, J.

This revision is directed against the order passed by learned Additional Sessions Judge, Pichhore (District Shivpuri) in Case No. 156 of 2001 dated 27th August, 2001 whereby the appeal filed by the petitioner has been dismissed on the ground of delay.

The trial Court rejected the petition filed u/s 5 of Limitation Act. Short facts of the case are that the learned Additional Chief Judicial Magistrate, Pichhore convicted the petitioner u/s 447 IPC and fine of Rs. 200/- in criminal Case No. 708/99 vide judgment dated 26.9.2001. Against the order of conviction the petitioner filed an appeal along with application u/s 5 of the Limitation Act before the Additional Sessions Judge, Pichhore.

The ground taken for delay is that due to wrong advice of counsel, the petitioner could not file the appeal in time. The appellate Court has not accepted this ground. The appellate court also held that no affidavit on behalf of the counsel has been filed by the petitioner. Hence rejected the application for condonation of delay.

I have heard Counsel for the parties.

It is submitted on behalf of the petitioner that the petitioner is a Government Servant and when sentence of fine was awarded by the trial court his counsel informed that it would not effect his service career, therefore he could not file the appeal in time. When he got notice from the department against the aforesaid conviction the appeal has been filed before the Additional Sessions Judge, Pichhore. In support of his contention, learned counsel for the petitioner relied on Mata Din Vs. A. Narayanan, ., in which it is held that mistake of counsel will not in every case by itself is always a sufficient ground to condone delay. Delay in filing appeal due to earlier filing of appeal in wrong forum on mistake advice of counsel. Nothing in the case to show that error of counsel was tainted by any mala fide motive. Court would be justified in extending time. Counsel for the non-petitioner supported the order of trial court and alleged that no sufficient ground has been shown by the petitioner for condoning the delay. In this case there is a delay of 9 months in filing the appeal.

In State of M.P. and Others Vs. Ramesh Prasad Verma and Others, , it is stated by our own High Court that,

Condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncodonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned, the alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of melafides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay is approaching the court is always deliberate.

So in view of the above discussion and keeping in view the facts of this case, I think a chance has to be given to the petitioner to contest the appeal before the appellate court on merit. Therefore, in the circumstances the delay for filing appeal is condoned and order passed by the lower appellate court is set aside. The case is remanded back with the direction that after affording opportunity of hearing to both the parties, disposed of the appeal according to law. The revision petition is disposed of as directed above by itself not be treated as precedent.

Copy of the order be sent to the concerning court alongwith record.