COLLECTOR OF JORHAT Vs. ON THE DEATH OF MD. BABLUL HAQUE, HIS HEIR NADIRA HAQUE & ORS.
HIGH COURT OF GAUHATI
COLLECTOR OF JORHAT
ON THE DEATH OF MD. BABLUL HAQUE, HIS HEIR NADIRA HAQUE And ORS.
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K. Lahiri, J. -
(1.)This is an application under section 5 of the Limitation Act, 1963, for short "the Act" for extention of the prescribed period of limitation in the appeal preferred by the petitioner-appellant. The Collector of Jorhat has filed the appeal against the award dated 4.3.83 passed by the District Judge, Jorhat in L.A. Case No. 17/71-72. The appeal was presented on 1.12.83 admittedly 176 days beyond the period of limitation. The petitioner has filed this application for condonation of the delay of 176 days. We extract the grounds on which the appellant-petitioner prays for extension of the time.
3. That there is sufficient ground in the appeal and the same may kindly be allowed on merit.
4. That the appeal could not be filed in time because of the staff who was dealing with the case was on leave cannot be traced out in the office.
5. That if the delay is not condoned the petitioner will suffer great hardships and injury.
6. That there are no laches or negligence on the part of the petitioner in preferring the appeal in time."
(Underscored by us) The application is supported by an affidavit. The deponent is an Upper Division Assistant in the office of the Sr. Govt. Advocate, Assam who has affirmed in the affidavit regarding the statements of facts, as under.
2. The statements made in this affidavit are true to my knowledge those made in paragraphs 1 and 2 are being matter of records, are true to my information derived therefrom which I believe to be true and those made in the rest are my humble submission before the Honourable Court."
It is thus seen that he has stated that the statements made in the affidavit sworn by him are true to his knowledge, those made in paragraphs 1 and 2 of the application under section 5 of the Limitation Act are 'matter of records' and they are true to his information derived therefrom. However, in regard to the statements made in paragraphs 3 to 7 of the application he says that they are mere submissions.
(2.)Now, let us turn to the averments made in the application for condonation of delay to establish that the appellant had "sufficient cause" for not preferring the appeal within the prescribed period of limitation. We find that the grounds are (1) that there is sufficient ground in the appeal and therefore the appeal may be allowed on merit, (2) that if the delay is not condoned the appellant will suffer hardship and injury, (3) the main ground however is that the appeal could not be filed in time "because of the staff who was dealing with the case was on leave cannot be traced out in the office". In our opinion, this is the only ground on which the petitioner party for extension of the period of limitation. What is the ground. The staff who was dealing with the case was on leave and he could be traced out in the office. Who is the staff ? We do not get any answer. Even his name has not been set out in the petition. He has not put in an affidavit in support of the statement of facts. If he was the staff-in-charge of the papers of the appeal how is it that no affidavit could be filed by him? None has made any averment that the statements contained in paragraphs 4 of the application are true. The Upper Division Assistant in the office of the Sr. Govt. Advocate, Assam, should have named the staff. He should have stated how long the said staff was on leave and ween he joined duties. Nothing to that effect has been stated by any one. We are to condone a long period of 176 days and it is the burden on the petitioner to explain every day's delay. We find no assurance about the correctness of the averments made in the petition. The deponent merely states that these are his submissions. There is no material to show that there was a staff' who went on leave and/or had kept the records somewhere which were not traceable. We do not get the period during which the staff was untraced and/or the records were untraced. In our opinion, this cannot be "a cause" for condoning the delay, not to speak of "sufficient cause".
(3.)Even if we are to assume that the cause of the delay was the absence of the staff who was in-charge of the records in the office of the Sr. Govt. Advocate, we do not find anything to show how long he was absent, to enable ourselves to condone the delay of 176 days. There is no material to show how long he was absent. There is no material to show how long the records could not be traced out. However, the records could be traced out yet there is no material to show the precise or even the approximate date when the records were traced out. We do not have any answer to the crucial questions. Is it a case of "missing records" for 176 days, or is it a case of a "missing person" for 176 days? We do not find any indication as to whether the staff and/or the records were missing for the entire period covering 176 days or part thereof. We do not find even an approximate period during which the records and/or "the staff" could not be traced out. However, we are invited to excuse the delay of 176 days.
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