MUKESH DEWANGAN Vs. SURESH KUMAR

JUDGEMENT

(1.) Heard on I.A.Nos.01/2019 and 03/2020, which are the applications filed by defendant No.2- Mukesh Dewangan under Section 5 of the Indian Limitation Act, 1963 read with Order 41 Rule 5-A of C.P.C. seeking condonation of delay of 278 days in preferring this Appeal. The parties to this Appeal shall be referred hereinafter as per their description in the Court below.

(2.) According to learned counsel for the Appellant/Defendant No.2, the delivery of impugned judgment and decree dated 30.11.2018 passed in Civil Suit No.7-A/2018 was not informed to the Appellant by his lower Court's Counsel and he came to know about it only on 14.10.2019, when he received the notice from the executing court. It is contended further that as per the advice of his Counsel, he was under an impression that he was a formal party in the suit and the main dispute is only between the Plaintiff-Suresh Kumar and Defendant No.1- Smt. Bhagmati. It is contended further that upon discussion and deliberation, he contacted the counsel of the High Court for preferring an Appeal, who, in turn, advised him to obtain the certified copy of the impugned judgment and decree dated 30.11.2018 along with other relevant papers. Acting upon his advise, he collected necessary papers and arranged the requisite court fee which took some time as he belongs to the lower middle class family. It is contended further that the alleged delay has occurred bonafidely owing to the said circumstances and therefore, it may be condoned for proper adjudication of the matter. In support, reliance has been placed upon the decision rendered in the matter of Collector, Land Acquisition, Anantnag and another v. Mst, Katiji and others , 1987 AIR(SC) 1353 and Ashok Kumar Bhelwa v. District Medical Officer (Civil Surgeon), Office of District Health Hospital,2020 AIR(Chh) 149 : AIROnline 2020 Chh 354, respectively.

(3.) In reply to the aforesaid application, it is stated by learned Counsel for Respondent No.1/Plaintiff/ Decree Holder that the delay in preferring the Appeal is huge and the application in this regard has been filed without explaining the same in a satisfactory manner. According to him, in the earlier application i.e. I.A.No.01/2019, it was stated by the Appellant/Defendant No.2 that due to his sickness, he could not contact his Counsel and arrange the court fee, however, contrary and altogether new reasons have been assigned in the subsequent application dated 23.11.2020, i.e. I.A.No.03/2020, which is entirely inconsistent to the statement sworn on affidavit in support of the earlier application i.e. I.A.No.01/2019. It is contended further that the Appellant/Defendant No.2 cannot be permitted to file two contrary affidavits and while inviting the attention of the Court to the certified copy of the impugned judgment and decree annexed with the memo of Appeal, contended that in fact an application for obtaining the same was made immediately upon the pronouncement of the judgment and decree under Appeal on 04.12.2018 and in pursuance thereof, it was delivered to him on 10.12.2018, yet, he preferred the Appeal only on 10.12.2019. Further contention of him is that the alleged date of knowledge of the impugned judgment and decree i.e. 14.10.2019, as stated by the Appellant/Defendant No.2 in the application (I.A.No.03/2020), was in fact the date of hearing before the concerned executing Court and therefore, based upon such false and concocted explanations, the applications as framed deserve to be rejected. In support, he placed his reliance upon the decision rendered in the matter of Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai , 2012 5 SCC 157 and also in the matter of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others , 2013 12 SCC 649.