Law Web: When court should not condone delay in filing of appeal on the ground of illness of appellant?

At the outset it can be said that the delay of 1106 days is huge

and inordinate. Now it is required to be seen as to whether the

present applicant has given any reasonable and sufficient ground to

condone the same. We cannot at the same time forget a fact that,

she was absent throughout the trial before the Trial Court and the

matter has proceeded ex-parte against her. Though this a fact

definitely she can challenge the Judgment and decree but then when

there is delay in filing second appeal we are require to consider

whether there is sufficient and reasonable ground. The main ground

which has been harped upon by the applicant is that she is suffering

from brain disease. The report dated 25-01-2013 says that, “The

findings are within normal limits. No diagnostic abnormality is

detected in the Brain Parenchyma.” However, it appears that

medicines were given and she continued to take the said medicines.

Thereafter, there is report of C T Brain – Plain dated 22-02-2016

which says that, “Contigeous axial sections were taken. Brain

parenchyma reveals normal values. No evidence of infarct, SOL, IC

bleed. Ventricles, cisterns, cortical sulci. No mass effect or mid line

shift noted. Cerebellum and brain stem appear normal. Bony

calvarium appear normal.” The impression given by the consultant

radiologist is that it is normal study. Thereafter there are reports of

blood. {Para 8}

9. The applicant has not field a single document issued by Dr.

Makrand Kanjalkar showing that, she is suffering from Meniere

disease. Whatever documents have been produced on record i.e. the

reports of C T Scan and MRI. On the face of it they say that the

findings are within normal limits. It will not be out of place to refer

a prescription given by Dr. Makrand Kanjalkar on 25-01-2013

wherein certain tablets were prescribed and one tablet i.e. tablet

Stugeron was prescribed and it is stated that, to be taken only after

giddiness. Even if for the sake of arguments it is accepted that, she

is suffering from Meniere disease, it can be said to be disorder of

the ear like Vertigo. There are no documents produced on record

showing that she was admitted to hospital for months together

though respondent No.3 to this application is stating the said fact.

In fact respondent No.3 has gone to the extent by saying that the

applicant is suffering from brain tumour when in fact it is not the

case of the applicant also. Another fact that is required to be noted

is that, applicant had appeared before the executing Court on 30-02-

2014 through advocate, therefore if she can take part in the legal

process through advocate then there was no hurdle for her to file

second appeal. When it comes to delay of 1106 days though now

the law is settled that each and every days delay need not be

meticulously explained yet there has to be substantial compliance of

the explanation to be given in respect of the entire duration. At the

cost of repetition it can be said that, there is no document produced

on record by the applicant showing that she was hospitalized. That

means if she was taking treatment on OPD basis then it cannot be

taken as a reasonable and sufficient ground to condone the delay of

1106 days. Under such circumstance, the application deserves to be

rejected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL APPLICATION NO.9753 OF 2016 IN SAST/12207/2016

Saw. Lata Pravin Chandan Vs Kashinath Ramji Shinde (Died)

Through Legal Heirs.

CORAM : SMT.VIBHA KANKANWADI, J.

Dated : 25-04-2019.

ORDER :

1. Present application has been field for getting delay of 1106

days condoned in filing second appeal.

2. Applicant is a original defendant No.8. Original respondent

No.1 was the plaintiff who had filed RCS No.777 of 2002 (Old Special

Civil Suit No.277 of 1998, Old Regular Civil Suit No.435 of 1987)

before Civil Judge, Senior Division, Aurangabad for possession,

declaration and mesne profits. Further present respondent no.3 had

also filed RCS No.413 of 1987 for perpetual injunction. Both the

suits were decided in common and a common Judgment has been

given on 27-10-2009. Both the suits came to be dismissed.

3. Original plaintiff – present respondent No.1 filed RCA No.169

of 2011 challenging the Judgment and decree passed in RCS No.777

of 2002 before learned Adhoc District Judge -1, Aurangabad. The

said appeal came to be allowed on 02-01-2013. Defendants No.1, 2

and 5 to 10 were directed to hand over the possession of the suit

property to the plaintiff. Now the defendant No.8 intends to

challenge the said Judgment and decree, however there is delay of

1106 days. The applicant has contended that she has purchased the

suit property by registered sale deed from respondent No.7 on 12-

03-1993 for consideration of Rs.1,24,000,/-. She is a old lady of 60

years suffering from blood pressure and diabetes. It is also stated

that, she is a patient of brain stem since 2011. She is taking

treatment from Dr. Makrand Kanjalkar from Manik Hospital Research

Centre, Jawahar Colony, Aurangabad. The MRI report says that, she

is a patient of Meniere disease. She is continuously taking

treatment from the said hospital. Because of the said disease she

tend to forget the things, and therefore, she could not meet

advocate and contest the matter. The delay is unintentional. Since

her vital property rights are involved, she has prayed for

condonation of delay.

4. Affidavit in reply has been filed by respondent No.1. She has

stated that, no sufficient much less reasonable ground has been

shown for condonation of delay. It is stated that, the applicant had

not appeared before the learned trial Court and the mater had

proceed ex-parte against her. She was never diligent about her

rights. He has also stated that, applicant appeared in Darkhast

proceeding i.e. Regular Darkhast No.08 of 2013 on 12-02-2014,

therefore she had the knowledge about the decision in the appeal.

She appeared in the matter by filing Vakalatnaka on 30-02-2014. It

is stated tht, the MRI Scan report shows that she is suffering from

Vertigo, which means feelings of giddiness caused by looking down

from great height. It is stated that, Meniere disease means

disorder of the inner ear that causes episodes in which you feel as if

you are spinning (Vertigo) and you have fluctuating hearing loss with

progressive ringing in the ear. It is stated that, there is falsehood in

the statement of the applicant that she could not move.

5. Respondent No.3 by filing affidavit in reply reiterated what the

applicant intends to say and stated that the applicant, old lady is

suffering from many diseases and was admitted for couple of

months in various hospitals. It is stated that, she is suffering from

brain tumour. It is also stated that, initially in the sale deed original

plaintiff mentioned the sheet number and plot number but thereafter

a correction deed has been executed and the correction deed has

been produced on 09-09-2001. Under such circumstance she has

prayed for condonation of delay in favour of the applicant.

6. Heard both the sides. Both the learned advocates have made

submissions in support of their respective contentions. It will not be

out of place to mention here that, when a statement was made in

the application that since 2011 the applicant is suffering from the

disease, a chance was given to the applicant to produce old

documents but no such old documents have been produced on

record. Learned advocate appearing for the applicant relied on,

N. Balakrishnan Versus M. Krishnamurthy, reported in AIR 1998

Supreme Court 3222, wherein delay of 883 days was condoned on

the ground where information was not given by the advocate to the

appellant and the said reason was found satisfactory.

7. Per contra, learned advocate appearing for the respondent

No.1 relied on the decision in, Office of The Chief Post Master

General and Ors. Versus Living Media India Ltd. and Anr., reported

in AIR 2012 SC 1506, wherein it has been observed that, if due

diligence is not shown and proper steps are not taken then the Court

may not help negligent litigant.

8. At the outset it can be said that the delay of 1106 days is huge

and inordinate. Now it is required to be seen as to whether the

present applicant has given any reasonable and sufficient ground to

condone the same. We cannot at the same time forget a fact that,