NARAYAN DAS Vs. HARI KISHAN DAS

JUDGEMENT

(1.) The instant defendants appeal is directed against the order and decree dated 29/3/2012; whereby, appeal has been dismissed on the ground of limitation as there was unexplained delay of near about 5 years. As a matter of fact, appeal in this Court has also been filed beyond the period of limitation and as per the office report, appeal is barred by 207 days. An application under section 5 of the Limitation Act has been filed along with this appeal vide I.A. No. 568/13 showing cause for not preferring the appeal within time that counsel did not communicate the final decision passed by the first appellate Court. In the opinion of this Court, it is hardly an explanation.

(2.) Even if the delay in filing the instant appeal is ignored, then also the order rendered by the first appellate Court, in the opinion of this Court does not warrant any interference. Appeal filed before the first appellate Court was barred by more than 5 years. The factual matrix framed for explanation of delay in fact suggest that there is no explanation at all for preferring the first appeal belatedly. The judgment of trial Court was rendered on 18.11.2005. It is submitted that as appellant was roped in a murder case and he was in jail and during this period, the judgment was rendered by the trial Court, therefore, he was prevented by sufficient cause for preferring the first appeal. If the factual narrations are carefully seen, reasons shown appear to be devoid of substance. The trial Court had delivered the judgment on 18.11.2005. The appellant was in jail only during 27.10.2005 to 25.5.2006 and the appeal has been filed on 28.2.2011. The first appellate Court has dealt with the issue as regards knowledge of the judgment to the appellant in para 9 and 10 of the order and on detailed discussion, it has been found that the certified copy of the judgment of the trial Court dated 18.11.2005 was hand over to the son of the appellant on 29.11.2005. This fact is admitted by appellants son Manmohan. There is no explanation at all as to how appellant had no knowledge of the judgment so passed when his own son had obtained the copy of the order. Even if the period during which the appellant was in jail i.e. from 27.10.2005 to 25.5.2006 is excluded, still after May, 2006 till February, 2011 for near about 5 years, there is no explanation offered by the appellant that when he obtained the copy of the judgment on 29.11.2005 why the appeal has been filed on 28.2.2011. In view of the facts and circumstances of the case, in the opinion of this Court, the first appellate Court was fully justified having dismissed the appeal on the ground of limitation as appeal is barred by near about 5 years and there is no cause much less sufficient cause shown by the appellant for preferring the appeal belatedly.

(3.) In view of the aforesaid, this Court finds no reason or justification to interfere with the order of the first appellate Court where the Court has dealt with the matter in detail and reached the conclusion that there is no explanation much less plausible explanation showing sufficient cause which prevented the appellate to prefer the appeal in time. On the contrary, appellant had knowledge of the judgment as his son obtained the certified copy of the judgment on 29.11.2005 and in any case, after being released on 25.5.2006, the appellant cannot be said to have no knowledge of the judgment of the trial Court. Under such circumstances, the first appellate Court was fully justified having dismissed the appeal on the ground of limitation.