09/01/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT      

            This order relates to hearing on the petition for condonation of delay of 187 days in filing this Appeal. 

            It has been stated in the petition for condonation of delay that the Appellant appeared before the Learned District Forum through Learned Advocate on 26/12/12, but subsequently the Learned Advocate did not turn up and the Appellant also failed to appear due to the illness of his father.  On 09/07/13 the case was disposed of by the Learned District Forum ex parte without the knowledge of the Appellant.  The Appellant received a notice in connection with the execution case no.5 of 2014 on 16/02/14 and applied for certified copy of the judgment.  Thereafter the Appeal was filed, but in the meantime the delay of 187 days has occurred in filing this Appeal. 

            It is submitted by the Learned Counsel for the Appellant that the Learned Advocate before the Learned District Forum did not appear in the case and the Appellant also due to the illness of his father could not attend the Learned District Forum on the date of hearing.  It is submitted that in the interest of justice the delay should be condoned. 

            None appeared on behalf of the Respondent. 

            We have heard the submission made by the Learned Counsel for the Appellant and perused the papers on record.  The Learned District Forum has recorded that after receiving notice the OP appeared before the Forum and prayed for time to file W.V., but ultimately did not turn up and, as such, the case was taken up for ex parte hearing.  In the petition for condonation of delay it has been stated that the Learned Advocate did not turn up before the Learned District Forum at the subsequent stage.  In this connection the Hon'ble National Commission in the decisions reported in IV (2012) CPJ 468 (NC) [St. Joseph’s Hospital & Ors. Vs. Jimmy P.K. & Ors.]; IV (2012) CPJ 575 (NC) [Shanti Ranjan Chatterjeee Vs. Dr. Anuj Kumar Ray & Ors.] held that negligence of litigant’s agent is negligence of litigant himself and is not sufficient cause for condoning delay.  Evidently, therefore, the Appellant having appeared through Learned Advocate before the Learned District Forum did not turn up at the subsequent stage and it is sufficient to show that there was negligence on the part of the Appellant.  Relying on the aforesaid decisions, we are not inclined to accept the contention of the Appellant in this regard as a reasonable explanation. 

            Secondly, it has been stated in the petition for condonation of delay that the Appellant could not appear due to the illness of his father, but in this connection no medical certificate or prescription has been filed by the Appellant in support of such contention.  Under such circumstances, we are of the considered view that the inordinate delay of 187 days in filing this Appeal has not been sufficiently explained. 

            The petition for condonation of delay is rejected.  Consequently, the Appeal being time barred also stands dismissed.