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Legal (gd)     09 November 2015

Condonation of Delay in PWDVA Case

I got final judgement order from LD Trial court to pay maintenance under section section 20 of PWDVA on 28th April 2015 I preferred appeal against the same under section 29 of PWDVA and filed on 27th May in sessions court. My opponent appeared thrice in the court and instead of filing reply filed appeal against me on 26th september after inordinate delay of 150 days stating vague reason that she lost the original copy of judgement which she found on 19th September hence this appeal which I objected strongly but sessions court admitted it. I want to know can I appeal in high Court against this time barred appeal? If so under which section appeal to be files and what are the chances of my appeal and can I get stay from high Court until the disposal of appeal??? It is clearly seems after getting notice she instead of defending her case mischievously filed appeal.


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 4 Replies

chandra mohan (power)     10 November 2015

Please read the following case law from Hon sc:

Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321 in its para 9 held as under:

“ The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ‘sufficient cause’ in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.”

In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under:-

 

“13 (i) The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ‘sufficient cause’ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.”

 

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.

 

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

 

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects.

 

(v) Want of “diligence” or “inaction” can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.

 

SAINATH DEVALLA (LEGAL CONSULTANT)     10 November 2015

I don't think U will get any respite in HC for the time barred appeal.Even the condonatiion for delay has elapsed.

Legal (gd)     11 November 2015

@ Sainath my appeal is not time bared . I am appealing against the time bared appeal.

Legal (gd)     11 November 2015

@ Chandra Mohan thanks for your input. Kindly let me know if I can appeal against this in HC and if yes then under which section ?

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