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Court No. 1
Second Appeal (defective) No. 211 of 2009
Ram Prasad Vs. Sri Ganga Dhar and others
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Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
This second appeal has been filed challenging the validity and
correctness of the judgment and decree dated 29.10.2007 passed by
Additional District Judge, Court No. 14, Agra in Civil Appeal No. 52 of 1999:
Ram Prasad Vs. Late Sri Ganga Dhar and others and also the judgment and
order dated 2.1.1998 passed by Additional Civil Judge (Senior Division),
Agra arising out of Suit No. 607 of 1993: Ganga Dhar Vs. Ram Prasad.
The appeal was reported to be beyond time, hence notices were
issued by the Court on 21.8.2009 on the delay condonation application. After
exchange of counter and rejoinder affidavits in the delay condonation
application, the appeal is listed today for orders.
The appellant in the affidavit filed in support of delay condonation
application has averred that the judgment in the appeal by first appellate
court was delivered on 29.10.2007. The applicant became mentally sick and
was missing since 30.12.2007. Thereafter he was traced out and was given
medical treatment from 25.6.2008 to 24.5.2009 in a nursing home. Copy of
certificate given in this regard by Dr. Pramod Mittal, M.B., B.S., M.D. (Gold
Medalist), EX- Registrar, Medicine Deptt., EX-Resident Medical Officer, S.N.
Medical College, Agra, Specialist in: Heart, Lung & Abdominal Diseases, is
enclosed as Annexure-2 to this affidavit, which reads as under:
“Certified that Mr. Ram Prasad S/O Late Shri Bal Ram R/O Itero Post
Office-Kakua, Agra got treatment in my nursing home from 25.6.08 to
24.5.09. He suffer half body paralysis in left side. He is suffering from liver
enlargement (Hepatitis B). So I suggested for one year complete bed rest.
He is required at most 6 months complete bed rest more.
I hope to god that he will be healthy soon with well recover in.”
From perusal of the medical certificate of the aforesaid doctor it
appears that the appellant was treated in the nursing home by Dr. Pramod
Mittal from 25.6.2008 to 24.5.2009 for half body paralysis in left side and for
liver enlargement (Hepatitis B). Accordingly, he was suggested complete
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bed rest for one year and at last for six months.
It may be noted that the applicant was not treated for mental
sickness by the aforesaid doctor. It appears from the objection/counter
affidavit filed in the delay condonation application that the factum of
mental sickness has been denied by the plaintiff-respondent. It has
also been stated in paragraph 6 of the counter affidavit filed in delay
condonation application that ground of mental sickness by the
appellant regarding the delay in filing the present appeal is not
sustainable on the ground of fact itself as the appellant has not
produced any medical certificate regarding his mental illness,
therefore, his contention regarding mental sickness is liable to be
rejected.
It has also been submitted that contention of the appellant is
that he become mental sick on 30.12.2007 and during his mental
sickness he was searched out and brought to his home on 25.6.2008
and was given medical treatment between the period of 25.6.2008 to
24.5.2009 is a concocted story. It is stated that this contention of the
appellant is belied by the fact that the appellant himself had executed
a sale deed of the plot in dispute to one Smt. Padma Devi wife of
Gopal Singh vide sale deed dated 21.6.2008 i.e. during the period of
his alleged mental illness. It is also stated that on one hand when the
appellant claims to be mentally ill from 30.12.2007 to 24.5.2009 and
on the other hand his act of execution of sale deed on 21.6.2008 itself
makes the whole story not believable.
In rebuttal, learned counsel for the appellant has stated that in
view of the fact that the appellant had gone missing due to mental
sickness from 30.12.2007 an FIR was lodged in this regard on
30.1.2008 and public in general was informed of the fact that he was
missing. In support of this he has relied upon medical certificate which
is quoted above.
After hearing learned counsel for the parties and perusing the
record the moot question which arises for consideration by the court is
as to whether the ground taken by the appellant for condonation of
delay in filing appeal is reasonable or not.
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The contention of learned counsel for the appellant is that due
to mental sickness he had gone missing from 30.12.2007 but none of
the family members of the appellant had lodged the FIR in this regard
within reasonable time as the FIR is said to have been lodged after
one month on 30.1.2008. As regards, information to general public by
is concerned, it was not published in any newspaper having wide
circulation. Rather it appears from Annexure-2 filed along with
affidavit in support of delay condonation application that appellant was
missing, was published in a pamphlet which can easily got published
from any printing press.
Perusal of the certificate of doctor, relied upon by the appellant
shows that appellant was not treated for any mental sickness. Hence,
there is no indication that the appellant was suffering from any mental
illness or was medically treated for it during the period he is claimed to
have taken treatment in the nursing home. Even about the expenses
and medicines prescribed have not been appended for his treatment
of alleged mental sickness. Thus, contention of learned counsel for
the appellant that after sale of aforesaid plot he was given medical
treatment is contrary to the certificate on which he placed reliance.
It is apparent from the record that court fee was also not paid
by he appellant at the time of filing of this defective appeal. In this
regard an application was made on 18.8.2009 by the appellant for
permitting him to deposit the court fee in a month’s time. More than
one moth period has elapsed since then but deficiency in court fee
has not been made good.
For all the reasons stated above, the delay condonation
application in filing the present second appeal as well as application
for extension of one month’s time for making deficiency in court fee
good are rejected. The second appeal accordingly stands dismissed.
Dated: 2.4.2010
RCT/-
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