Unknown vs Akhil Kumar Gupta
2025 Latest Caselaw 383 UK

Uttarakhand High Court

Unknown vs Akhil Kumar Gupta on 14 May, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

     HIGH COURT OF UTTARAKHAND AT NAINITAL

          Hon'ble Justice Sri Rakesh Thapliyal

                       14th May 2025
                Second Appeal No. 68 of 2018

M/s Zaz Sons Export Pvt. Ltd. And anr.
                                    ............... Appellant
                           Vs.
Akhil Kumar Gupta
                                    ............Respondents

Counsel for the Appellant: Mr. Siddharth Sah, learned counsel

Counsel Respondents: Mr. S.K. Jain, learned Senior Advocate assisted by Mr. Siddharth Jain, learned counsel (Mr. Rakesh Thapliyal, J.)

1. In furtherance of previous arguments as advanced by the learned counsel for the parties, today, Mr. Jain, Senior Advocate placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Mamtaz and others vs. Gulsuma @ Kulusuma , (2022) 2SCC 555 and particularly he placed reliance on paras 2.5, 5, 6 and 9 in order to give his response on issue nos. 2 and 3 framed on the previous date.

2. In support of his arguments, Mr. Sah, learned counsel again placed reliance on the judgment of the Constitutional Bench of the Hon'ble Apex Court, i.e, Sheodan Singh Vs. Daryao Kunwar, 1966 SCC Online 98 which was followed by the Delhi High Court in the case of Rajkumar vs. Ghanshyam Das Gupta, 2022 SCC Online Del 2353.

3. Now the question no. 1 which was framed earlier is as follows:-

Whether the First Appellate Court adopt a liberal approach in considering application for condonation of delay on ground of substantial cause under Section 5 of the Limitation Act.

4. In reference to this question of law Mr. Siddharth Sah first of all bring to the notice of this court the application moved under Section 5 of the Limitation Act which is supported with the affidavit of appellant no. 2 Tahir Hussain in which in para 2 and 3 following statement has been given:-

2. That the deponent is suffering from heart disease since the year 1995 and was completely bed ridden from late 1999. A medical certificate of the deponent is being enclosed as Annexure-1 of this affidavit for the perusal of the Hon'ble Court.

3. That the counsel of the appellant Shri M.P. Awasthi, Advocate, who was from Kanpur had also expired on 15.04.2001 and since the appellant was bed ridden could not come to Dehradun and peruse the file.

5. In response to this, the objections were filed and the answer to the statement as given in para 2 and 3 of the affidavit filed in support of the delay condonation application is given in para 3 and 4 which reads as under:-

3. That the contents of para 2 of the said affidavit are wrong, false and denied. It is wrong and denied that the deponent of the said affidavit suffers from any heart disease since 1995 or from any other period. It is again wrong and denied that the deponent of the said affidavit was ever bed-ridden from 1999 or from any other period, as alleged. It is also wrong and denied that there is any such medical certificate as annexure 1, as alleged. Rest of the contents of para 2 of the said affidavit are wrong and denied.

4. That the contents of para 3 of the said affidavit are wrong, false and denied. It is wrong, false and denied that the expiry of Shri M.P. Awasthi, Advocate has anything to do with the decree or the delay in preferring the appeal in O.S. No. 455 of 1995 ibid. It is also wrong and denied that the deponent of the said affidavit was ever bed-ridden, as alleged. The suit No. 455/1955 "Akhsil Kumar v/s M/s Zazsons Exports Pvt. Ltd." Was decreed on 03.04.2001 and the above case was filed on 10.10.2005. If the statutory time of 30 days for preferring appeal is excluded, there is delay of 1621 days, i.e,. a period of about 4 ½ years, which is unexplained. Rest of the contents of para 3 of the said affidavit are wrong and denied.

6. Mr. Siddharth Sah, in reference to question of law as above, first of all placed reliance on the judgment of Inder Singh vs. The State of Madhya Praded, 2025 LiveLaw (SC) 339 and particularly he placed reliance of para 17 of the said judgment. In addition to this one more judgment he has relied upon, i.e. Dr. Yashwantrao Bhaskarrao Deshmukh vs. Raghunath Kisan Saindane, (2022) 16 SCC 572 and placed reliance in para 12 onwards to 15.

In addition to this, one more judgment he has relied upon, i.e, Ashok Kumar vs. New India Assurance Co. Ltd., (2024) 1 SCC 357 and he placed reliance in para 23 wherein observation has been drawn that where there is a fault of an Advocate, the litigant should not be made to suffer. This particular judgment he has relied upon in reference to the statement as given in para 3 of the delay condonation application wherein a reference has been made that his counsel died on 15.04.2021.

7. Here some dates are relevant i.e., the decree of the trial court passed on 03.04.2001 and the First Appeal was filed on 10.10.2005 and counsel of the appellant died as per the delay condonation application on 15.04.2001 and after his death only this much explanation has been given in the delay condonation application that appellant's father was bed-ridden.

8. Mr. Sah, learned counsel submits that in the affidavit there is a typographical error and in fact father of appellant no. 2 was bed-ridden which is evident from the medical certificate enclosed with the delay condonation application.

9. At this juncture it is necessary to give reference of Section 5 of the Limitation Act, which reads as under:-

5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

10. On perusal of Section 5 of the Limitation Act one of such requirement is that the applicant should satisfy the court that he had sufficient cause for not preferring the appeal or making the application within such period.

11. On perusal of the affidavit filed in support of the delay condonation application no doubt there is a reference of the death of the counsel of the appellant who died on 15.04.2001 but on perusal of this affidavit

it reveals that there is no explanation for the period after death of the counsel till filing of the appeal. The question is whether the explanation and the reasons as given in the delay condonation application fulfils the requirement of Section 5 of the Limitation Act.

12. To address on this issue the counsel for both the parties requests that the matter be posted on 19.05.2025.

13. Put up this matter on 19.05.2025 at 3:30 pm.

(Rakesh Thapliyal, J.) Parul