S S SRIVASTVA Vs. STATE

JUDGEMENT

(1.) We shall decide this Application filed under Section 5 of the Limitation Act seeking condoning of 513 days delay in filing the present Appeal. The impugned Order notes the failure of the Appellant to prove the Will by production of either of the attesting witnesses. Along with the petition an affidavit of Dr. N.L. Gupta had been filed which is treated as his examination-in-chief. The learned Single Judge has opined that since Dr. N.L Gupta was not produced as a witness with the result that he was not subjected to cross-examination, his affidavit was of no avail. The probate petition was contested by the four sisters of the Petitioner.

(2.) The grounds for condoning the delay in filing the Appeal is that the Appellant was allegedly not aware of the passing of the final orders dated 5.2.2007. The Appellant asserts that he gained information of this fact only on receiving of copy of the order by post on 2.8.2007. Learned counsel for the Respondent has emphasized that the Appellant has not disclosed the person or manner in which a copy of the order was received by him. This indeed is a material objection. However, there is further delay even after the alleged receipt of the impugned Order. According to the Appellant he had requested his counsel to apply for a certified copy which was made available only in September, 2007 and that he was disheartened because of the impugned Orders.

(3.) The Appellant has made general assertions that he is suffering from various physical ailments; that he suffered two severe heart attacks which have completely shaken him up and he is still under trauma. He stated that he has developed muscular dystrophy. He was admitted to ICU from 14.9.2008 to 16.9.2008. In September, 2008 the Appellant filed a Review which was dismissed as withdrawn on 26.9.2008. The present Appeal has been filed on 1.10.2008.