S.B. Civil Second Appeal No.3647/2004 (DR-J).
Date of Order : July 28, 2008
HON’BLE DR. JUSTICE VINEET KOTHARI
Mr. C.S. Rajpurohit for the appellant.
Heard learned counsel.
The learned counsel submitted that since the appellant had
gone out of station and was not informed timely about the decision
of the first appeal the delay in filing the second appeal arose. The
delay in question is of 583 days. Respondents have filed reply to
the application under Section 5, Limitation Act denying the
averments made in the application.
In the said reply, it has been submitted that the defendant
appellant was not prosecuting the first appeal and, therefore, there
is no good reason to condone such huge delay in filing the second
appeal.
Upon perusal of the averments made in the application filed
under Section 5, Limitation Act, this Court is satisfied that no
proper reason is made out by the appellant for condonation of the
delay. Even though liberal approach is taken it does not mean
that the delay has to be condoned as a matter of right. Unless
cogent reasons are made out before the Court such leniency may,
on the other hand, seriously prejudice the rights of the other party
and put a premium on the lethargy and delay caused by the
appellants in approaching the Court.
Even otherwise, scope of the second appeal is much
narrowed down after amendment in the Civil Procedure Code and
only on a substantial question of law this second appeal can be
maintained.
Having heard the learned counsel, this Court does not find
any good ground made out for condonation of the delay. The
application for condonation of delay under Section 5, Limitation Act
is rejected.
Consequently, the appeal is also dismissed.
(Dr. Vineet Kothari) J.
Ojha, a.