HARI SHANKAR Vs. SHAMBHUSINGH

JUDGEMENT

(1.) This appeal has been filed on 17.8.2009 against the impugned award dated 30.11.2005 passed in Claim Case No. 22 of 2004 after the delay of about 1355 days along with an application under section 5 of Limitation Act, wherein it is stated that the appellant is an uneducated person and not conversant with the niceties of law. It is said that on receiving summons of claim petition, he had immediately contacted his counsel at Chittorgarh in Rajasthan and requested him to take appropriate steps in the matter at Jaora, Distt. Ratlam in M.P. On the advice of his counsel he had not appeared before Claims Tribunal, but filed the written statement prepared by the advocate and sent it by registered post. In the claim petition the Tribunal proceeded ex parte against him and passed the impugned award making the appellant liable for payment. It is said that appellant was not aware of the final award, but when the execution proceeding has been filed and the notice in those proceedings has been served on appellant, then only certified copy of award and the documents were obtained and on engaging the counsel at Indore this appeal has been filed. In the meantime, delay of 1355 days has occurred, however, it is said that delay in filing of appeal is bona fide and deserves to be condoned.

(2.) By filing the reply, the claimants-respondents have stated that in the application it has not been mentioned that on what date the appellant has received the notice of execution proceeding, thereafter on which date he has applied for obtaining the certified copy. He has also not specified that on which date certified copy was obtained and on which date he has contacted his counsel at Indore. The date of knowledge has also not been mentioned by the appellant in application or in the affidavit, however it is apparent that he has failed to show any satisfactory reason to condone inordinate delay of 1355 days in filing the appeal. In view of the aforesaid, it is urged that the application filed by the appellant may be ordered to be dismissed.

(3.) Mr. Sunil Jain, learned counsel for the appellant has submitted that the notice of execution proceedings was issued by the court on 15.7.2009 for the date fixed in execution on 25.8.2009 and the appeal has been filed by the appellant on 17.8.2009, however, it should be inferred that immediately on receiving the notice he has filed this appeal, i.e., from the date of knowl-edge of passing the award, which he has come to know by way of summons issued by the executing court, therefore, the delay in filing the appeal is bona fide and liable to be condoned. It is further contended by him that the appellant has acted bona fide on the advice of advocate, however, he should not be left to suffer for the fault of advocate, who has given wrong advice. It is further contended by him that by condoning the delay appeal may be remitted back to trial court with the permission to appellant to contest the claim on merit.