SHYAMADEVI Vs. JASUMATI DEVI

JUDGEMENT

(1.) This is a plaintiffs Second Appeal against the judgment and decree dated 5.8.1993 rendered by P. Xess, District Judge, Aurangabad, dismissing the appeal as time-barred, in a suit for declaration that the deed of gift, dated 14.11.1984 executed by Ram Bishun Yadav in favour of Maheshwari Devi and Manmati Devi was illegal and void. The chronology of the events leading to the surfacing of the disputes may be succinctly stated. The suit for declaration, that the gift deed dated 14.11.1984 was illegal and void, was dismissed on 7.4.1989 and an application was filed for obtaining certified copy of the judgment and decree of the trial court on 27.6.1989 and the copy was supplied on 7.7.1989. Thereafter the First Appeal was filed on 11.7.1989 under Section 96 of the Civil Procedure Code along with an application under Section 5 of the Limitation Act, 1963 (compendiously "the Act") for condonation of delay in filing the appeal. Cause for delay in filing the appeal was indicated in the application. The cause was that after the judgment of the trial court, the appellant fell ill on 25.4.1989 and was bed-ridden and under the treatment of the doctor at Asansol till 22.6.1989. Thereafter when she recovered from illness, she applied for certified copy of the judgment and decree of the trial court on 27.6.1989 and after receiving the same she filed the appeal, and this is how sufficient cause has been made for condonation of delay. But the learned District Judge took the view that no sufficient cause was made out, hence by the impugned judgment and decree dismissed the appeal. Against that decree the present Second Appeal has been filed.

(2.) The learned counsel for the appellant strenuously contended that as the appellant was suffering from Infective Hepatitis with Jaundice since 25.4.1989, hence on account of inability the appeal could not be filed within time. As soon as she recovered from illness an application for obtaining the certified copy of the judgment and decree was filed and the certified copy was obtained on 7.7.1989. The appeal was filed along with an application to condone the delay. Sufficient cause was made out. He urged that there must be justice-oriented approach in considering the cause for delay in filing the appeal. He leaned heavily on G. Ramegowda Major v. The Special Land Acquisition Officer, Bangalore, (A.I.R. 1988 S.C. 897), where their Lordships of the Apex Court under paragraph 7, having considered other cases of that Court, have ruled that if there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel, in that event there shall be no reason for condonation of delay, but each case has to be considered on its own facts, and if there appears that the conduct of the appellant was bona fide and the cause shown appears to be, correct, in that event with a view to have substantial justice and not technical justice, the delay must be condoned.

(3.) The learned counsel for the respondents refuted the submissions of the learned counsel for the appellant and urged that the present appeal is liable to be dismissed.