A U VALIULLA Vs. A V SHAFIULLA

JUDGEMENT

(1.) NONE appears for the appellant. There is absolutely no representation on the side of the appellant when the matter has reached for orders on i. A. No, 1 of 2002. Under the circumstances, therefore, left with no other alternative, I myself carefully perused the case papers including the averments made in the affidavit filed in support of LA. No. 1 of 2002 in order to find out whether on the face of it, there appears any sufficient cause to condone the delay in filing the appeal.

(2.) LATER, the learned Counsel for the appellant has also been heard in the matter. He contended that the daughter of the appellant who is suffering from heart ailment, had been taken for treatment to several hospitals and under the circumstances, he could not contact his Advocate before the lower Appellate Court and that it is only in the 2nd week of March 2002, he came to know about the judgment and decree passed by the lower Appellate Court and immediately thereafter he contacted his Advocate and obtained the certified copy of the judgment and decree and preferred this appeal. He also contended that even in the month of march 2002, the daughter of the appellant was admitted to Mallegowda district Hospital at Chickmagalur and though his daughter was discharged from hospital, she has been regularly attending the hospital for treatment. Under these compelling circumstances, he contended that the appellant could not contact his Advocate at Bangalore to file this appeal.

(3.) IT is not in dispute that there is a delay of 135 days in filing this regular second appeal. The appellant has sought to explain the delay on two grounds. The first one being that his daughter was suffering from heart ailment and from August 2001, he had taken her to several hospitals and due to which he was terribly upset and could not contact his advocate before the lower Appellate Court. In this context, he further states that he came to know of the judgment and decree passed by the first Appellate Court in the month of March 2002. In order to substantiate that his daughter was suffering from certain heart ailment and she was taken to several hospitals, except the bald statement made in the affidavit, no substantial material has been placed on record to support this explanation. That apart even according to the appellant himself, he came to know of the judgment and decree passed by the lower Appellate court in the month of March 2002 itself. That being so, nothing prevented the appellant from preferring this appeal within the prescribed time. Secondly, he contends that even in the month of March 2002, his daughter was admitted to the District Hospital at Chickmagalur and that she was discharged and she was regularly attending the hospital for treatment. It is not known as to when she was discharged from the hospital. Further, even according to him, she is continuing to take treatment. In the situation, therefore, the treatment of the daughter did not come in the way of the appellant preferring the appeal within the prescribed time. That apart, as I have already stated, there is nothing on record to show that during the relevant time, the appellant was disabled from preferring the appeal within time due to the ailment of his daughter. It is no doubt true that the Court should be liberal in the matter of condoning the delay in preferring the appeal especially when no mala fides are attributed. But then, the delay is inexcusable unless sufficient cause is shown. It is not the law when an application seeking condonation of delay is filed by a party, this Court must invariably condone the delay, irrespective of whether sufficient cause is shown or not. Section 5 of the Limitation Act gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well-understood and the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. In the instant case, though the appellant was aware of the judgment and decree passed by the first Appellate Court in the month of March 2002, he did not file the appeal within the prescribed time. The explanation offered to condone the delay is neither convincing nor acceptable and more so when the same is not supported by any material on record. On the face of it, there appears to be no sufficient cause to condone the delay. Under the circumstances, I do not think that it is even necessary to issue notice on this application. It is only when the circumstances mentioned in the application filed before this Court would show sufficient cause to condone the delay that notice is required to be issued or otherwise there is no need to issue notice. It is no doubt true that law of limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. Hence, I find that the explanation offered by the appellant to condone the delay of 135 days in filing this appeal besides being not convincing, is neither reasonable nor satisfactory to condone such an inordinate delay. I am therefore, not inclined to condone the delay.