Andhra Pradesh High Court
Judges : NEELAM SANJIVA REDDY, S.PARVATHA RAO
Managing Director, APSRTC., Hyd. - Appellant
Versus
Laghshetty Leeluvathi - Respondent
CMP. No.5012/95 & CMA(SR)No.17173/95
Decided On : 07-25-95
Advocates Appeared :
Mr. Kota Bhaskar Rao, K. Raji Reddy
HELD: The difference in the language adopted in Section 5 of the Limitation Act, 1963 and the second proviso to Section 173(1) of the Act has to be noticed. Section 5 of the Limitation Act, 1963 provides that any appeal or application etc., "may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period". Second proviso to Section 173(1) of the Act, on the other hand provides for a different satisfaction - "that the appellant was prevented by sufficient cause from preferring the appeal in time".
In this case, the petitioner has not made out that he was "prevented" by any sufficient cause from preferring the appeal within the time of ninety days allowed to him. It is incumbent on a person preferring an appeal under Section 173(1) of the Act to take all care to see that the appeal is filed within time and unless he shows sufficient cause which prevented him from preferring the appeal in time in spite of care and deligence, the High Court will not be inclined to entertain an appeal preferred out of time. The satisfaction of the Court under the second proviso to Section 173(1) will naturally have to depend on the appellant establishing that in spite of all care and deligence it was not possible for it to prefer the appeal in time. The onus is on the appellant to satisfy the Court that it was so prevented.
( 1 ) WE do not find any sufficient cause for condoning the delay of 197 days in filing this appeal. Both in the affidavit filed in support of this C. M. P. for condoning the delay as well as in the reply affidavit dated 24-7-1995 filed by the senior Law Officer of the Andhra Pradesh State Road Transport Corporation, it is admitted that certified copies of the judgment and the award of the learned district Judge, Medak at Sangareddy dated 7-2-1994 in O. P. No. 642 of 1992 were received on 14-6-1994 and that the same were sent to the Law Department of the corporation on 26-7-1994 i. e. , nearly six weeks after they were received. It is stated that the file was marked to the standing counsel by the Law Department on 29-7-1994 and that the standing counsel returned the file along with the draft grounds only on 14-3-1995. There is nothing to substantiate this. No correspondence is referred to in the affidavits nor any copies of the same filed to establish when the papers were sent to the standing Counsel and when he returned it. No affidavit of the standing Counsel is filed explaining why the standing counsel delayed. What prevented the advocate from having the appeal filed within time is not stated. There is no explanation whatsoever why the officers of the Corporation kept quiet between 29-7-1994 to 14-3-1995 and nothing is stated as to what steps were taken to see that the grounds were read ied in time for the appeal to be filed in time. In Ajit Singh vs. State of Gujarat, the Supreme Court observed as follows:"now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be event or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay. "even assuming that the appeal was belatedly readied on 14-3-1995 there is unexplained delay even after that; there is no explanation why it took till 27-3-1995 to have the appeal filed. We have to observe that inordinate delay cannot be condoned in every case in a casual way for the mere asking and on the filing of some affidavit stating in a mechanical manner that the advocate took his own time heedless of the law of limitation or because the officers took their own time in corresponding interminably and that therefore there is sufficient cause.
( 2 ) IN Govt. of A. P. vs. Y. S. Parkash Rao, a three Judges Bench of the supreme court while refusing to condone a delay of 69 days under Section 5 of the limitation Act, 1963 held as follows:"the application made in that behalf by the appellants stated the reason for delay to be a misunderstanding on the part of an officer of the government who had been required by the counsel for the State to get a copy of the judgment of the High Court. It is said that officer thought that he was to wait till the High Court disposed of the question of the grant of certificate about the fitness of the case for appeal and that he, therefore, went on waiting till the matter was finally disposed of by the High Court. Even though, the special leave petition was time barred by 69 days, no attempt was made by the appellant to put in an affidavit of the officer concerned. There is thus no material before the Court in support of the truth of the allegation which formed the reason for delay. We, therefore, need not go into the question as to whether su
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