By this application, the appellant seeks condonation of delay. The delay is of 332 days as per the office report and according to counsel it is 327 days. 2. The applicant/appellant submits that the order dated 28.01.2010 rendered by the State Commission was received by him on 09.03.2010 and thereafter he handed over the relevant papers to the learned Advocate Mr. Pramatha Nath Sarkar, with instructions to file an appeal. The learned Advocate thereafter asked the applicant to contact him on 29.03.2010. The applicant went to the residence of the said Advocate on 29.03.2010 and gave Vakalatnama duly signed by him along with affidavit with instructions to file memorandum of appeal. The concerned Advocate instructed the applicant to contact him in the first week of May, 2010. On 07.05.2010 the applicant learnt that the said Advocate (Mr. Pramatha Nath Sarkar) died on 30.03.2010 as a result of massive heart attack. Though, his family members were requested to search out relevant case papers yet they expressed inability to do so. The family members of the Advocate told the applicant to contact them in the middle of the month of May, 2010. He visited the residence of the said Advocate time and again, but the papers could not be traced out and therefore, another copy of the impugned judgment was obtained and thereafter the present appeal was filed. The application is resisted on behalf of the respondent Nos.3 and 4. According to the respondent Nos.3 and 4, the reasons are not proper and satisfactory. It is pleaded by respondent Nos.3 and 4 that the applicant committed negligence and delay is not properly explained so, they sought dismissal of the appeal. 3. The learned counsel for the applicant submits that the applicant had no reason to commit the delay, but it was due to unfortunate death of the concerned Advocate that he could not present the appeal within the span of time. He would submit that liberal approach should be taken in the present matter, in view of the fact that the appeal is merit worthy. He would further submit that but for the death of concerned Advocate, the delay could not have occurred. Per contra, learned Advocate for the respondents No.3 and 4 submits that the lethargy on behalf of the applicant is writ large on the face of the record. 4. Coming to the merits of the application, it may be gathered the applicant has not explained as to how the impugned order dated 28.01.2010 was not received by him within a reasonable time. He vaguely stated that he obtained certified copy on 09.03.2010. He did not explain when free copy was made available to him. He did not give any explanation why there was delay in obtaining certified copy nor he has produced any copy of the application whereby certified copy was sought by him from the State Commission. The delay of 40 days at the initial stage in obtaining the certified copy is therefore, rather inexplicable. 5. The certified copy, according to version of the applicant was obtained on 09.02.2010. It is also not clear as to why he took long period of more than 20 days in approaching the concerned Advocate after obtaining that copy. The next reason given by the applicant is that the death of the Advocate was sudden and he came to know of it on 07.05.2010. The version of the applicant even if it is believed, does not show any substantial reason for him to wait further when the family members of the concerned Advocate expressed their inability to search out the record when he contacted them. He has stated that the family members of the concerned Advocate asked him to contact them in the middle of May, 2010. It is, therefore, more probable that by about end of May, 2010 he could realize that the relevant papers were untraceable. The applicant could have diligently obtained another copy of the impugned order and file the appeal in the month of June, 2010. The endorsement on the copy of the impugned order, filed in this Commission, shows that the application for certified copy was filed on 7.01.2011 and it was made ready on the same day. That was obtained by him on 10.01.2011. The unexplained delay in obtaining of the certified copy, when the relevant papers were not likely to be traced out, is not satisfactorily explained. We are of the opinion that the delay of 40 days of initial period and delay between 1st June, 2010 till 10.01.2011 is not properly and satisfactorily explained. 6. There cannot be duality of opinion that a liberal approach has to be taken in such a matter. The expression “liberal approach” does not, however, mean to dilute the rigour of Section 5 of the Limitation Act, when the delay is not justified and explained to the satisfaction of the applicant concerned. Under these circumstances, we are of the opinion that the present application falls outside pale of Section 5 of the Limitation Act. 7. Considering forgoing discussions, the application is dismissed and, therefore, the appeal also stands dismissed. |
