SAMIR KUMAR DEY Vs. SOVA RAY

JUDGEMENT

(1.) In this application under Section 115 of the Code of Civil Procedure, 1908 (in short, the 'Code') the order passed by the learned District Judge, Mayurbhanj, Baripada refusing to condone the delay in presentation of the appeal (Title Appeal No. 31 of 1993) is the subject-matter of challenge.

(2.) Undisputedly there was delay in presentation of the appeal. The petitioner filed the Title Appeal against the final decree dated 15-5-1992 passed by the learned Subordinate Judge, Baripada in Title Suit No. 32 of 1968. The appeal was presented on 26-5-1993. A petition under Section 5 of the Indian Limitation Act, 1968 (in short, the 'Act' ) was filed stating that there was delayed presentation of the appeal, as the appellant was ill and bedridden from 10-5-1992 to 25-5-1993. The prayer was to condone the delay. The respondents (opposite parties herein) filed their objection to the said prayer, inter alia on the ground that the appellant was never ill and was regularly participating in his business activities, and having lost at different stages by way of journey to various Courts including this Court and the apex Court, the appeal had been filed to prolong the proceedings and to frustrate the result of the decree. The petitioner filed certificate issued by Dr. Partha Sarathi Jena, who was also examined as witness No. 1 for the appellant, while the appellant examined himself as witness No. 2 for the appellant. The respondents also examined witnesses and brought on record certain documents to support their claim that the appellant was never ill during the period as claimed. One of the grounds taken by the respondents was that the appellant was all along coming to Court and also filed petitions, and 12 to 13 adjournment petitions were filed in the Court of Subordinate Judge, Baripada, but nowhere it had been indicated that he was ill or was suffering from rheumatoid arthritis. Two petitions filed by the appellant-petitioner in person were indicated. These two documents were marked as Exts. A and D. One storage agent of the controlled commodities was examined as witness No. 1 for the respondents. He stated with reference to the issue register that the petitioner, who is a retail control dealer was personally known to me, (sic) him and came to his godown with the issue orders from the supply Department and took sugar, wheat and rice on many occasions between April, 1992 and June, 1993. The signatures given by the petitioner on the issue registers on several occasions were marked Exts. B and C. The stand of the petitioner was that though he is a retail control dealer, the business was being carried on by some other person on his behalf.

(3.) The learned District Judge found that there was no challenge by the petitioner to his signatures on the issue registers vide Exts. B and C. The doctor also admitted that he had no personal knowledge whether the petitioner was in normal conditions, was able to move freely outside, was lifting controlled commodities from the godown, and was carrying on business and coming to Court to attend other cases. In the aforesaid background, it was held that there was no acceptance of reason for presentation of the appeal after the due date.