Back
2010 Supreme(All) 2442
2010 (82) ALR 651
HIGH COURT OF JUDICATURE AT ALLAHABAD
Sanjay Misra, J.
Shabbir Khan – Petitioner
Versus
IIIrd A.D.J. & Others – Respondent
WRIT - C No. - 2225 of 1996
Decided on : July 29, 2010
Counsel for the Petitioner:- M.A.Qadeer
Counsel for the Respondent:- C.S.C.,J.N.Verma,S.K. Dwivedi
Credible evidence and timely filing of applications under Section 5 of the Limitation Act are crucial in seeking condonation of delay.
Headnote:
Condonation of Delay - Civil Procedure - Limitation Act - Section 5
Fact of the Case:
The petitioner, a defendant in a land injunction suit, sought to set aside an ex parte order due to his alleged arrest and illness preventing his appearance in court. The Trial Court rejected his application under Section 5 of the Limitation Act for delay in filing the recall application.
Finding of the Court:
The Court found that the petitioner failed to provide sufficient evidence of his arrest and illness, leading to the rejection of his application under Section 5 of the Limitation Act and the appeal against the ex parte order.
Issues: The issues revolved around the petitioner's failure to sufficiently explain the delay in filing the recall application and the credibility of the evidence presented regarding his arrest and illness.
Ratio Decidendi: The Court emphasized the need for credible evidence to support claims of arrest and illness, and the importance of timely filing of applications under Section 5 of the Limitation Act.
Final Decision: The impugned orders were set aside, granting the petitioner an opportunity to produce credible evidence of his arrest and illness, and allowing the Trial Court to consider the application for condonation of delay and the recall application.
Hon'ble Sanjay Misra,J. - Heard Sri M.A. Qadeer learned Senior Counsel assisted by Sri Shamim Ahmad learned counsel for the petitioner. The cause list of old cases has been revised. None appears on behalf of the respondent nos. 3 and 4 however counter affidavit is available on record. The petitioner was a defendant in Suit no. 67 of 1987 pending in the court of First Additional Civil Judge, Kanpur Dehat, Kanpur whereas the respondent no. 3 and 4 were the plaintiffs.
2. According to Sri Qadeer the plaintiff respondent had filed a suit for injunction with respect to the land in question against the defendant petitioner wherein an order dated 12.11.1992 was passed by the Trial Court to proceed exparte against the defendants. The petitioner alleges to have filed an application for recall of the order along with an application under Section 5 of the Limitation Act which was rejected by the Trial Court by the order dated 12.4.1993 and the appeal there against being Misc. Appeal No. 15 of 1995 has also been dismissed by the judgment and order dated 21.1.1995. The petitioner is aggrieved against the said orders.
3. Sri Qadeer has submitted that while considering the application under Section 5 of the Limitation Act the Trial Court has found that the petitioner could not sufficiently explain the delay in filing the application on a day to day basis. It has disbelieved the two medical certificates filed by the petitioner to show that he was ill and has therefore rejected the application under Section 5 of the Limitation Act as also the application to set aside the exparte order. He states that the petitioner had given a clear explanation that he could not appear on 12.11.1992 because he was arrested on 7.11.1992 and could get bail only on 25.11.1992 whereafter he fell ill and after recovering from his illness he approached his lawyer who after inspection of the file, filed restoration application alongwith condonation delay application on 31.7.1992.
4. Sri Qadeer has also submitted that the delay of two months and 20 days in filing the application for recall of the exparte decree ought to have been considered liberally more particularly when on the date when the order to proceed exparte was passed i.e. 12.11.1992 the petitioner was in custody and was prevented from appearing in court. He states that his non appearance was not a default of the petitioner but having been arrested he was prevented from appearing in court. Under such circumstances it is submitted that if sufficient explanation has been given for non appearance on 12.11.1992 then in order that the dispute between the petitioner defendant and the plaintiff respondents be decided on merits the court ought to have taken a liberal approach.
5. According to Sri Qadeer the petitioner was unwell and therefore instead of filing prescription of the doctors prescribing medicine for his ailments he has obtained the certificate from the doctor regarding bed rest for the period of six months during which the petitioner continued to be unwell and under treatment of those doctors. He also states that in so far as the evidence of his being in custody from 7.11.1992 to 25.11.1992 it is available but the petitioner had filed an affidavit stating those facts under bonafide belief that the affidavit would be believed.
6. He therefore states that interest of justice would require that the petitioner should not be un suited in a suit filed against him for injuction relating to the land in question and the courts below ought to have adopted a liberal approach while considering his application for condonation of delay.
7. Having considered the submission of learned counsel for the petitioner and perused the counter affidavit filed on behalf of the respondents as also the impugned orders both the Courts have found that the petitioner has not filed any evidence to show that he was arrested on 7.11.1992 and was granted bail on 25.11.1992. It has therefore recorded that the non appearance of th
