Order No. 7 Date: 14-03-2017

Sri Utpal Kumar Bhattacharya, Member

The petition praying for condonation of delay is taken up for passing necessary order.

There is a delay of 94 days in filing the instant Appeal.

Heard the Ld. Advocates appearing on behalf of both sides.

The Ld. Advocate appearing on behalf of the Appellant submitted that the copy of the impugned Judgment and Order dated 18-01-2016 was issued by the Ld. District Forum on 21-01-2016.  As further submitted, the Ld. Advocate could collect the copy of the impugned Order from the Ld. District Forum and handed over the same to the Branch office of the Appellant on 01-02-2016.

The Ld. Advocate continued to submit that the delay was absolutely unintentional as the same was caused for reasons beyond control as narrated in the petition.  He, thus, prayed for condonation of the delay stating that the Appeal has good ground and the interest of the Appellant would be prejudiced unless the Appellant was allowed an opportunity of being heard.

We have gone through the petition praying for condonation of delay.  It appears that the reasons for the delay, as narrated in the petition, are due to (1) sometimes delayed collection of order and handing over the same to the Appellants by the Ld. Advocates; (2) sometimes because of the valuable time being eaten up in course of observing official procedure at different levels in and outside the state; (3) sometimes because of the illness or injury of the Ld. Advocate for the Appellant and (4) sometimes for the illness of others related to the Ld. Advocates.

The medical certificate which have been produced in support of illness of the Ld. Advocate indicates that on 13-02-2016, i.e., on expiry of 15 days from the date of the impugned order, being the half of the statutory period for filing Appeal, the Ld. Advocate suffered an injury on his left little finger while playing cricket.

That apart, three medical certificates dated 16-03-2016, 18-04-2016 and 08-05-2016 issued in the name of one Mitali Mukherjee indicating therein the patient’s suffering from different ailments were also furnished and stated to be the reasons of the Ld. Advocate’s incapability to file the Appeal within the statutory period. 

It may be seen that the first of the above 3 medical certificates was issued on 16-03-2016, i.e., almost two months after the impugned Judgment and Order was passed.

Such being the circumstances, the medical grounds of the Ld. Advocate for the Appellant or his relative, as offered in the petition as reasons for delayed filing of the Appeal, are difficult to accept since it reveals only negligence on the part of the Ld. Advocate and as we know, it is the settled principle of law that negligence of a litigant’s agent is negligence of the litigant himself and is not sufficient cause for condonation of delay, as has been decided by the Hon’ble National Commission in Revision Petition No. 3048/2011 dated 09-10-2012 (M/s Arihant Builders & Ors. Vs. Gaurav Anand Co-Op. Housing Society Ltd.), reported in 2012(4) C.P.J. 739 : 2012(4) C.P.R. 487 : 2013(1) CLT 383 (NC) : 2012(66) R.C.R.(Civil) 315.

Further, procedural delay which has been put forward as the reasons for the delay in filing of the Appeal also cannot be accepted since the procedural delay is not exempted from counting the period of delay.

Keeping in view all the facts, circumstances and decision of the Hon’ble National Commission referred to above, we are of considered view that the delay for a long period of 94 days in filing the Appeal should not be condoned.

Hence,

O R D E R E D

that prayer for condonation of delay is not allowed.  Consequently, the Appeal stands dismissed being barred by limitation.