Subran And Ors vs Namit Sai And Ors

@JUDGMENT-JUDGMENT

Sanjay K. Agrawal, J

Proceedings of this matter have been taken up through video conferencing.

Heard on I.A. No. 1, application for condonation of delay in filing this second appeal under Section 100 of the CPC. The present application is filed

by the appellant/plaintiff for condonation of delay of 793 days in filing the appeal.

Mr. Akhilesh Kumar, learned counsel for the appellants/plaintiffs, would submit that the civil suit and the first appeal were contested on behalf of

both the plaintiffs by plaintiff No. 1 Subran himself, but after the judgment of the first appellate Court was pronounced, plaintiff No. 1 died and his wife

plaintiff No. 2 was not aware of the judgment and decree passed by the first appellate Court and when she got to know about it, she preferred this

second appeal on 13/02/2008, therefore, delay of 793 days in filing the appeal be condoned as sufficient cause has been shown by plaintiff No. 2.

The application for condonation of delay (I.A. No. 1) has been drafted very casually. Paragraphs 1 to 3 of the said application state as under :¬

Application of condonation of delay ""The appellant above named humbly submits as under :¬

That the appellant preferred a present appeal and as submitted in detail in the memo of appeal, the appellant has every hopes to succeed in the

appeal. That for sake of brevity the contents of the memo of appeal may kindly be treated as a part of this application.

That, the appellant no. 1 is a person who is contesting the suit very diligently and but after the death of the appellant no. 1, and when the appellant

no. 2 came to know about the judgment and decree passed the learned court's below, he immediately contract the local counsel to approached the

Hon'ble Court and in this process there is some delay in filing the appeal.

That delay is due to bonafide reasons and the appellants are diligent in contesting the case and continuously appearing before the learned court's

below. That great justice has been done with the appellants and they are deprived from there property, without receiving the consideration and further

a fraud had been committed with the appellants by the respondent.

A careful perusal of the aforesaid application would show that the first appeal was contested by both plaintiff No. 1 namely Subaru and his wife

plaintiff No. 2 namely Leela Bai. Then, it appears that plaintiff No. 1 died, but the date on which he died has not been mentioned anywhere in the

entire record, neither in the memo of appeal nor in the application for condonation of delay. The date of death of plaintiff No. 1 is not apparent and

plaintiff No. 2 has simply pleaded that she was not aware of the judgment and decree passed by the first appellate Court, so the second appeal has

been filed with a delay of 793 days.

The first appeal was dismissed on 12/09/2005 and the second appeal was filed on 13/02/2008 i.e. after 793 days, but in the entire application for

condonation of delay quoted herein-above, there is no mention of the date of death of plaintiff No. 1 Subaru nor has it been anywhere mentioned about

the date on which plaintiff No. 2 Leela Bai came to know about the judgment and decree passed by the first appellate Court and no particulars have

either been given with regard to plaintiff No. 2 contacting the local counsel and thereafter filing the second appeal with an inordinate delay of 793

days.

True it is that sufficient cause provided under Section 5 of the Limitation Act has to be construed liberally, but some cause much less sufficient

cause has to be shown for condoning the delay particularly, when the delay is of more than two years. No such sufficient cause has been shown for

condonation of delay of 793 days in filing the second appeal.

Accordingly, I.A. No. 1, application for condonation of delay in filing the appeal is rejected and consequently, the second appeal is hereby dismissed

on the ground of delay of 793 days in filing the appeal. No order as to cost(s).