MILAGRINA DE SOUZA Vs. ROGERIO SILVANO DE SOUZA

JUDGEMENT

(1.) This is an appeal against acquittal. Leave to appeal was granted by this Court to the appellant on February 22, 1978. The appeal was filed on April 10, 1978, 47 days after the order granting leave was passed. The period of limitation prescribed for filing an appeal of this nature is 30 days, from the date on which leave to appeal is granted. The appeal was therefore filed 17 days beyond the limitation period.

(2.) The case of the appellant regarding sufficiency of cause for delay is that her advocate Shri D'Souza, was entrusted with the filing of the appeal, that Shri D'Souza, had suddenly to leave Goa for Delhi and therefore he drafted the memo of appeal and sent it to her through one Jose Paulo Souza, who stayed in her neighbourhood, with instructions to file the appeal on or before 24-3-1978. According to the appellant, Jose Paulo Souza also had to leave suddenly for Bombay and totally forgot about the memo of appeal; advocate D'Souza returned from Delhi on March 24, 1978, the last day of the period of limitation. In the affidavit of Jose Paulo Souza filed in support of the application for condonation of delay, he states that he was told by Advocate D'Souza to hand over to the appellant the memo of appeal with instructions to her to fix a court-fee stamp of Rs. 2/- and file it in court as early as possible, but in any event before 24-3-1978.

(3.) The application was opposed to by the respondent. His advocate Kolwalkar argues that the whole story given by the appellant is unbelievable. He states that the story of complete entrustment by the appellant to Shri D'Souza, alleged by the appellant, is not true. No wakalatnama of the appellant is filed by the petitioner in favour of Shri D'Souza. No wakalatnama is in the record of the proceedings of this appeal. When Shri D'Souza was asked whether the wakalatnama was sent by him along with the memo of appeal, he stated that it was sent, but later on he stated that the wakalatnama was not sent with the memo of appeal. I would not like to comment on this ambiguity, but it appears to me that no wakalatnama was given by the appellant to Shri D'Souza and for that reason no wakalatnama appears on the file. Since the appellant had not given any wakalatnama to Shri D'Souza, the appellant was bound to be more diligent and to meet Shri D'Souza to find out whether an appeal was filed or not. It must also be noted that Shri D'Souza did riot mention in his affidavit that he had sent to the appellant along with the memo of appeal, the wakalatnama given by her to him. This lack of diligence on the part of the appellant is fatal to the appeal.