Nauratan Mal v. Hari Singh

Wanchoo, C.J:— This is an application by Nauratan Mal, Vallabh Dass, and another under Section 5 of the Limitation Act, ??? that the delay in the filing of the appeal ??? condoned. The decree against which the ??? is filed was made on the 17th of March, ???. The application for copy was made on the ??? of April 1949, and copy was ready on the 23th of April, 1949, and was taken away on ??? same day. The appeal was filed on the 4th of July, 1949. It was within time upto the 25th of June, 1949, and was thus filed 9 days beyond time.

2. The applicants filed an affidavit in support of their application, in which they showed the following grounds for the delay: (1) Nauratan Mal had been ill from before the 19th of May, 1949, and remained in hospital from the 19th of May, 1949 to the 23rd of June 1949 and was bedridden. (2) The father of the counsel, who was appearing in the trial Court, died about the 19th of May, 1949 and the counsel himself fell ill on the 25th of May 1949. (3) As soon as Nauratan Mal came out of the hospital, he instructed his son Vallabh Das, who is also an appellant, to file the appeal. Vallabh Das went to Udaipur on the 29th of June 1949; but there was curfew in Udaipur on the 30th of June and 1st and 2nd July, 3rd of July was a Sunday, and, therefore, the appeal was filed on the 4th of July, 1949.

3. Learned counsel for the opposite party, however, urges in the first place, that the affidavit, which has been filed, is no affidavit at ill, or at any rate, is of no value, and that the grounds disclosed in it are entirely insufficient to make out a case for any indulgence in favour of the applicants.

4. The affidavit, in this case, has certainly lot been properly sworn. The endorsement merely is that Vallabh Das read the affidavit ??? the beginning to the end, and admitted that the facts mentioned in it were correct and ??? on his instructions.

5. This is, in our ??? quite inadequate for the purpose. It is he duty of a person swearing an affidavit to ??? separately what parts of it he is swearng on personal knowledge and what parts on ??? or information received. However, we teed not throw out the application on this ground alone, as we shall show just now that accepting the affidavit, even as it stands, as correct, it is quite insufficient to make out a case in favour of the applicants.

6. We have already mentioned that the ??? was taken by the applicants as far back is the 23rd of April, 1949, but no attempt was ??? to file the appeal earlier than the end of ??? No doubt an applicant praying for in ??? under Section 5 of the Limitation Act as only to explain the delay of those days which are beyond the period of limitation, and he antecedent inaction or negligence is not ??? and should not be taken into consideration. We may, in this connection, refer to he case of ‘Karali Charan v. Apurba Krishna’, AIR 1931 Cal 298, with which we respectfully agree.

7. In the present case, however, the applicants have practically given no good reason or the delay which took place between the 6th of June and the 3rd of July. The illness ??? Nauratan Mal or of his counsel is quite ??? because Nauratan Mal had got well ??? the 23rd of June, and we do not know when ??? counsel got well. It should also be remembered that the certificate, which has been filed ??? support of Nauratan Mal's illness, is merely ??? the effect that he had been suffering from ??? Hepatitis. It does not show that Nauitan Mal was not in a position to give ??? on to his son about filing the appeal before ??? 23rd of June, 1949, nor does it show that Nauratan Mal was so seriously ill that he could of look after his affairs before the 23rd of June, 1949. Vallabh Das is also an appellant, and he apparently was quite well. There was, therefore, no good reason in this case for the appeal not having been filed by the 25th of June, 1949.

8. As to the delay from the 26th of June onwards, it is the duty of the applicants in such cases to explain each day's delay satisfactorily and if, they fail to do so, they cannot get the benefit of Section 5 of the Limitation Act. In this case the affidavit discloses no reason for the delay from the 26th of June to the 29th of June. There is no explanation why Vallabh Das could not reach Udaipur earlier than the 29th of June. Further, there is no reason why, if Vallabh Das had reached Udaipur on the 29th of June, he could not file the appeal on that very day; The reason for not filing the appeal on the 30th of June, and 1st and 2nd of July is that there was curfew order in force in Udaipur. It is not stated, however, that the curfew order was in force for all the twenty-four hours; for example, if the curfew order was in force for the night, there is no reason why the appeal could not be filed in day time on any of these three days. It is also not stated that the Courts were closed on these three days on account of curfew order. There is thus no satisfactory explanation whatsoever for the delay of nine days in filing the appeal. The applicants appear to be well to do persons and we do not see why they should not have been able to arrange for the filing of the appeal before the period of limitation. We, therefore, see no reason to extend the period of limitation in this case, and reject the application under Section 5 of the Limitation Act. In consequence, the memorandum of appeal is also rejected.

D.H

9. Application and appeal rejected.