Dismissed

Sangita and 2 Others v. Shiv Kumar Alias Baley

Allahabad HC27 Apr 2024/39/2022

Case brief

AI extract

What is this about?

The court dismissed a second appeal and an application for condonation of delay due to negligence. Despite claims of the mother handling the case until her death and untraceable counsel, the court found the appellants at fault for failing to secure new representation promptly.

What did the court decide?

Condonation of delay in filing Second Appeal Defective No. 39 of 2022; consequential dismissal of the Second Appeal.

Sangita and 2 Others Vs Shiv Kumar Alias… — Civil Procedure and Limitation | Allahabad HC (2024)

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Court No. - 5

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Case :- SECOND APPEAL DEFECTIVE No. - 39 of 2022

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Appellant :- Sangita And 2 Others Respondent :- Shiv Kumar Alias Baley Counsel for Appellant :- Om Prakash Singh

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Hon'ble Rajnish Kumar,J.

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Heard Shri Om Prakash Singh, learned counsel for the appellants. None appeared on behalf of the respondent despite sufficient service.

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This second appeal has been filed with a delay of 445 days as on 20.10.2022. The period which has been calculated after giving the benefit of COVID-19 in view of judgment of Hon'ble Supreme Court in Suo Moto Writ Petition (Civil) No.13 of 2020.

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Learned counsel for the appellants submits that the mother of the appellants was doing the pairvi of the appeal before the lower appellate court and she died on 23.04.2021 and thereafter when they approached the present counsel on 29.09.2022 then he enquired about the status of Regular Civil Appeal No.178 of 2018 and came to know that the same has been decided by means of the judgment and order dated 17.05.2019. Thereafter the present appeal has been filed on the instructions of the learned counsel for the appellant. Thus the delay is not deliberate or intentional and second appeal is liable to be heard and decided on merit.

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I have considered the submissions of learned counsel for the appellant and perused the affidavit filed in support of the application.

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As disclosed in affidavit filed in support of application for condonation of delay in filing appeal, Smt. Vimla Devi, the appellant no.1 in the Regular Civil Appeal No.178 of 2018 as well as the respondent in Original Suit No.1018 of 2010 died on 23.04.2021, who was doing the pairvi. As such the appellants were not aware about the proceedings of the case. The appellants approached to the present counsel on 29.09.2022 to enquire about the status of the Regular Civil Appeal No.178 of 2018 as the contact details of earlier counsel engaged in the Regular Civil Appeal No.178 of 2018 was not traceable. Thereafter the counsel sought the status of the regular civil appeal and informed about the disposal of the said appeal on 17.05.2019. Thereafter on the instructions of the appellants he

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checked the status of second appeal, if filed any, against the judgment and order dated 17.05.2019 in Regular Civil Appeal No.178 of 2018, then it came to light that no second appeal has been filed and on the instructions of the counsel to file the second appeal, the application for certified copy of the impugned judgment and decree dated 29.05.2018 as well as 17.05.2019 was filed on 06.10.2022, which was received on the same date, therefore the delay has occurred which was beyond the control of the appellants and thus it is liable to be condoned.

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The appellant nos.1 is the daughter of Smt. Vimla Devi and 2 & 3 are the sons, who are aged about 30, 38 and 31 years respectively as per the age given in the appeal, whereas the age of Smt. Vimla Devi was 58 years at the time of filing of the Original Suit No.1018 of 2010 as recorded in the judgment and order dated 29.05.2018 and at that time the age of the appellants were 20, 23 and 3 years respectively and it is not the case of the appellants that they were not residing with their mother Smt. Vimla Devi, therefore this Court is unable to accept the plea of the appellants that their mother was doing the parivi, therefore they have no knowledge of the judgment and order passed by the appellate court. Even otherwise, it is not the case of the appellants that they had no knowledge of the proceedings of the trial court as well as the appellate court.

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Even if the mother of the appellants was doing the pairvi of the case, she must have been in the knowledge of the judgment and order dated 17.05.2019 passed by the appellate court and accordingly the appellants because she was alive for about two years thereafter and if she had not taken any action for challenging the same which may be only on account of the fact that the same was accepted by her. There is no explanation for the said period. It is also noticed that Smt. Vimla Devi had died on 23.04.2021 and the appellants had contacted to the counsel after one year and six months and the only explanation for the said period is that the contact details of the earlier counsel was not traceable. If the same was not traceable, they could have contacted any other counsel immediately after death of Smt. Vimla Devi or in a month or two.

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In view of above and considering the over all facts and circumstances of the case, it is apparent that the appellants had been negligent in pursuing the matter and the cause shown is not sufficient to condone the delay. The Hon'ble Supreme Court in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai; (2012) 5 SCC 157 , has held that a litigant who has been negligent is not entitled for any relief.

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In view of above, the application for condonation of delay is misconceived and liable to be dismissed.

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The application for condonation of delay (C.M. Application No.01 of 2022) is, accordingly, dismissed .

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Consequently, the Second Appeal Defective No.39 of 2022 is also dismissed .

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...................................................................(Rajnish Kumar, J.) Order Date :- 27.4.2024 Haseen U.

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Digitally signed by :- HASEENUDDIN High Court of Judicature at Allahabad, Lucknow Bench

Sangita and 2 Others v. Shiv Kumar Alias Baley

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Sangita and 2 Others v. Shiv Kumar Alias Baley

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