Mahendra Singh vs State Of U.P. And Another
2016 Latest Caselaw 7188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 25
 

 
Case :- FIRST APPEAL DEFECTIVE No. - 357 of 2016
 

 
Appellant :- Mahendra Singh
 
Respondent :- State Of U.P. And Another
 
Counsel for Appellant :- Rajiv Sisodia,Dhirendra Kumar Srivastav
 

 
Hon'ble Surya Prakash Kesarwani,J.

Heard Sri Rajiv Sisodia, learned counsel for the appellant.

This first appeal has been filed beyond limitation by six years and 8 days, alongwith delay condonation application and affidavit. The affidavit accompanying the delay condonation application has been sworn by one Sri Brahampal Singh which is reproduced below:

"1. That the deponent is the family friend of the appellant and is doing pairvi on his behalf in the above noted First Appeal and as such he is well acquainted with the facts deposed to below.

2. That reference was decided on 16.08.2010 by the Learned Additional District Judge, Court No. 5, Bijnor and appellant was interested to challenge reference before Hon'ble High Court, therefore, the certified copy was obtain on 17.11.2011 and appellant has come to Allahabad for going to the chamber of present counsel and at the Railway Station one person has met by saying that he is Clerk of Mr. Sisodia and counsel has gone to Delhi and that person has taken away the appellant to one house to the southern side of main railway station and appellant has handed over fees and document to that person.

3. That the appellant was under bonafide impression that his appeal has already been filed, but he was also worried that no one is responding at the telephone number which was given to him.

4. That in the first week of November, 2016, appellant has succeeded in getting mobile number of Mr. Sisodia who has told that he has no document in the name of Mahendra Singh and thereafter the appellant has requested the deponent who is close family friend to go to Allahabad.

5. That the deponent has come to Allahabad on 16.11.2016 and he has contacted on the telephone number and he has succeeded in getting location of telephone number and with the help on counsel deponent has succeeded in getting documents and fees (in part) and present appeal is being got prepared by the counsel, therefore, the delay, if any, in filing the present First Appeal, may kindly be condoned."

Perusal of aforequoted affidavit shows that apparently it is a false affidavit.

In paragraph 2 of the affidavit a vague averment has been made without disclosing the name of the alleged person and his mobile number to whom the appellant allegedly handed over the fees and the documents including certified copy of the impugned judgment obtained on 17.11.2011. There is no disclosure of facts that on which the appellant came to Allahabad when he allegedly met someone who allegedly represented to be clerk of the present counsel namely, Sri Rajiv Sisodia.

Allegation has been made in paragraph 3 that no one was responding at the telephone number which was given to him. Even in this paragraph the appellant has not disclosed name of the alleged person and his alleged telephone number.

In paragraphs 4 and 5 averments have been made that the deponent of the affidavit came to Allahabad on 16.11.2016 and contacted on the telephone number which was given to the appellant and with the help of the counsel the deponent has succeeded in getting the document and fees. The averments are totally false on the very face of it inasmuch as the appellant could not contact on the given telephone number for six years but suddenly when the deponent came to Allahabad he contacted the undisclosed person on the given telephone number. Averment has also been made that with the help of the counsel the deponent succeeded in getting the document and fees. However when the Court put question to the learned counsel for the appellant that who was the counsel who helped, he stated that he helped to get the documents but on further query that who was the person from whom the documents were allegedly obtained and how he was traced, learned counsel for the appellant shown inability to disclose the name and the identity of the person. The certified copy accompanying the appeal was obtained on 17.11.2011. Thus the entire averments made in the affidavit accompanying the delay condonation application are apparently incorrect. There is absolutely no explanation for delay for more than six years. That apart appeal has been filed merely affixing Court Fee of Rs.5 and thus there is deficiency of Court Fee of Rs.20,286/-.

The Privy Council in Brij Indar Singh Vs. Kanshi Ram ILR (1918) 45 Cal 94 observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. This principle still holds good, inasmuch as, the aforesaid decision of Privy Council has repeatedly been referred to, and, recently in State of Nagaland Vs. Lipok AO and others, AIR 2005 SC 2191.

In Vedabai @ Vaijayanatabai Baburao Vs. Shantaram Baburao Patil and others, JT 2001(5) SC 608 Hon'ble Supreme Court observed that under Section 5 of Act, 1963 Court should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.

In Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr., (2010) 5 SCC 459, Hon'ble Supreme Court observed that same yardstick should be applied for allowing application for condonation of delay filed by private individuals and the State, but certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay.

In the case of Pundlik Jalam Patil Vs. Jalgaon Medium Project, 2008, 17 SCC 448, Hon'ble Supreme Court held that incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. In this case there was inordinate delay 1724 days, which was condoned by the High Court and the order the High Court was set aside by Hon'ble Supreme Court

Facts of the present case clearly shows that the appellant was not only negligent and careless but also the delay lacks bonafide and the explanation given in the affidavit is concocted. Under the circumstances, I do not find any good reason to exercise my judicial discretion. The delay condonation application deserves to be rejected.

In view of the aforesaid, the application No.362171 of 2016 seeking time for payment of Court Fee and the application No.362168 of 2016 for condonation of delay are rejected. Consequently, appeal also stands dismissed.

In view of the aforesaid, the appeal is dismissed with the cost of Rs.5000/- which the appellant shall deposit with the Legal Cell Authority, High Court, Allahabad within a month.

Order Date :- 24.11.2016/vkg