Delhi High Court
Dr. S.S. Srivastva vs The State & Ors. on 8 October, 2010
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.419/2008 & CM Nos.14491-14492/2008
DR. S.S. SRIVASTVA .....Appellant through
Mr.Ravi Gupta, Sr. Adv. with
Mr. Swastik Singh, Adv.
versus
THE STATE & ORS. .....Respondents through
Mr. B.L. Anand, Adv. for
Respondents No.3 & 4
Ms. Amrit Kaur Oberoi &
Ms. Kanika Sabharwal, Adv.
for Respondent No.5
Date of Hearing : September 15, 2010
% Date of Decision : October 08, 2010
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported
in the Digest? No
VIKRAMAJIT SEN, J.
CM No. 14992/2008
1. We shall decide this Application filed under Section 5 of
the Limitation Act seeking condoning of 513 days delay in filing
the present Appeal. The impugned Order notes the failure of
the Appellant to prove the Will by production of either of the
attesting witnesses. Along with the petition an affidavit of Dr.
N.L. Gupta had been filed which is treated as his examination-
in-chief. The learned Single Judge has opined that since Dr. N.L
Gupta was not produced as a witness with the result that he was
not subjected to cross-examination, his affidavit was of no avail.
The probate petition was contested by the four sisters of the
Petitioner.
2. The grounds for condoning the delay in filing the Appeal is
that the Appellant was allegedly not aware of the passing of the
final orders dated 5.2.2007. The Appellant asserts that he
gained information of this fact only on receiving of copy of the
order by post on 2.8.2007. Learned counsel for the Respondent
has emphasized that the Appellant has not disclosed the person
or manner in which a copy of the order was received by him.
This indeed is a material objection. However, there is further
delay even after the alleged receipt of the impugned Order.
According to the Appellant he had requested his counsel to
apply for a certified copy which was made available only in
September, 2007 and that he was disheartened because of the
impugned Orders.
3. The Appellant has made general assertions that he is
suffering from various physical ailments; that he suffered two
severe heart attacks which have completely shaken him up and
he is still under trauma. He stated that he has developed
muscular dystrophy. He was admitted to ICU from 14.9.2008 to
16.9.2008. In September, 2008 the Appellant filed a Review
which was dismissed as withdrawn on 26.9.2008. The present
Appeal has been filed on 1.10.2008.
4. Learned counsel for the Appellant has argued that the
Appellant suffered heart attacks in 1999 and 2004. This period
is not relevant for the present purposes. Counsel for the
Appellant has further stated that the Appellant visited National
Heart Institute due to severe pain on 6.12.2007. But there is no
evidence of any hospitalization. It is also submitted that the
Appellant visited National Heart Institute due to weakness,
sleep disorder and lower back ache on 7.7.2008; he has not
undergone hospitalization.
5. It is relevant for us to consider the conduct of the
Appellant immediately upon the passing of the impugned orders
in February, 2007. In this period, even on the Appellant's own
showing, he was not suffering from any medical disorders such
as would make it impossible for him to file the present Appeal.
As we have already noted, there is only a vague assertion that
the first time he became aware of the passing of the impugned
Order was on 2.8.2007 on receiving a copy of the order served
by post. This version is only to be stated for it to be immediately
rejected. Not only does it lack in material particulars but it is a
wholly incredulous story. Even if it were to be taken as correct,
the Appellant would be expected to take necessary legal actions
immediately thereafter. The Appeal, however, has been filed on
1.10.2008 i.e., the following year, thereby causing a delay of
513 days.
6. According to the Respondents, the Appeal has been filed
only after they demanded their share in their father's property.
7. We are not satisfied that sufficient cause has been shown
for condoning this extra ordinary delay.
8. The application is dismissed.
FAO(OS) No. 419/2008 & CM No. 14491/2008
9. Since the Application seeking condonation of delay of 513
days in filing the Appeal has been dismissed, the Appeal as well
as all the pending application also stands dismissed.
( VIKRAMAJIT SEN )
JUDGE
( MUKTA GUPTA )
October 08, 2010 JUDGE
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