2002 (12) TMI 658 - HC - Indian Laws

Court dismisses delay condonation and appeal restoration applications; stresses timely filing; lack of cause cited; no costs awarded.

Rajnarainsingh Avadhraj Singh and Ors. Versus Versus Vidyadevi and Ors.

Rajnarainsingh Avadhraj Singh and Ors. Versus Versus Vidyadevi and Ors. - TMI Issues Involved:1. Condonation of delay in filing the application for restoration.2. Restoration of the dismissed First Appeal.3. Condonation of delay in filing the certified copy of the decree.Issue-wise Detailed Analysis:1. Condonation of Delay in Filing the Application for Restoration:The petitioners argued that the delay in filing the application for restoration was justified due to the procedural history of the case. After the dismissal of the First Appeal on 6th October 2001, the petitioners filed a Letters Patent Appeal, which was disposed of on 11th March 2002. Subsequently, the application for restoration was filed on 1st April 2002. The petitioners contended that this sequence of events constituted a sufficient cause for condonation of delay. However, the respondents countered that there was an inordinate and unexplained delay of over four and a half years in placing the certified copy of the decree on record, and that the provisions of Section 5 of the Limitation Act were not applicable in this case.2. Restoration of the Dismissed First Appeal:The petitioners claimed that the First Appeal, initially admitted on 15th November 1995, was dismissed on 6th October 2001 due to failure to file the certified copy of the decree and non-appearance on their behalf. They argued that the appeal should not have been dismissed without a full hearing and that the delay in filing the certified copy of the decree was due to a bona fide mistake by their previous advocate. The respondents maintained that the appeal was rightly dismissed due to non-compliance with procedural requirements and that the petitioners had failed to justify the delay adequately.3. Condonation of Delay in Filing the Certified Copy of the Decree:The petitioners explained that they applied for the certified copy of the judgment on 14th September 1995 but did not realize that the application did not include the decree. They only discovered this mistake after office objections were raised and subsequently applied for the certified copy of the decree on 8th January 2001. The respondents argued that the petitioners failed to apply for the certified copy of the decree within the period of limitation, and thus, the benefit of exclusion of time under Section 12 of the Limitation Act could not be availed. The court noted that the petitioners had been granted multiple extensions to file the certified copy but failed to do so in a timely manner, and no sufficient cause was shown for the delay from February 1997 to January 2001.Legal Analysis and Conclusion:The court emphasized the necessity of filing the certified copy of the decree along with the appeal as per Order 41 Rule 1 of the CPC and the Appellate Side Rules of the High Court. The court observed that the petitioners were aware of the requirement to file the certified copy but failed to take necessary steps within the prescribed period. The court referred to the decisions in Udayan Chinubhai v. R.C. Bali and J.K. Kapur v. Vachha & Co., which clarified that the exclusion of time under Section 12 of the Limitation Act applies only when the application for the certified copy is made within the period of limitation. The court also noted that the petitioners' conduct, including making incorrect statements and failing to file the application for condonation of delay promptly, indicated a lack of bona fides.The court concluded that the petitioners had not disclosed sufficient cause for the condonation of delay and dismissed both the applications for condonation of delay and restoration of the First Appeal, with no order as to costs.