In an application for condonation of delay to file a second appeal arising from a claim petition, the applicant pleaded illness and literacy but failed to credibly explain the 76-day gap. The single judge dismissed the application citing lack of evidence for the default.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF BOMBAY AT GOA
MISC.CIVIL APPLICATION NO. 1034 OF 2009
IN
STAMP NUMBER MAIN NO. 3947 OF 2009
SHRI VIKAS BHAGDI Versus AMELIA GAMA AND 3 ORS.,
... Applicant
... Respondents
Shri Arun Bras De Sa, Advocate for the Applicant.
Coram:N. A. BRITTO, J.
Date:4th May, 2010
P.C.:-
Heard.
The Applicant herein was Respondent No.1, as driver, in Claim Petition No.144 of 2008.
The Claim Petition was decided on 27-7-2009 in the presence of his lawyer. In other words, the Applicant is deemed to have had noticed of the Order dated 27-7-2009 that the petition was decided against him.
However, there is absolutely no explanation as to what the Applicant did from 27-7-2009 to 11-11-2009. Learned Counsel on behalf of the Applicant states that the Applicant was a mason and considering that he was an illiterate migrant the Applicant has shown sufficient cause to condone the delay of 76 days.
Next, the Applicant has stated that when he visited his lawyer's office on 11-11-2009 he was advised to prefer an appeal and accordingly his lawyer applied for a certified copy and collected the same on 13-11-2009 and requested him to visit the office on 25-11-2009 but he went to the lawyer's office on 30-11-2009 and
thereafter on 5-12-2009 he visited his lawyer's office at Panaji and the said lawyer told him that he would study the brief and requested him to come around on 7-12-2009 on which day he was informed that he should prefer an application for condonation of delay.
The Applicant has not mentioned the names of his lawyers nor has given any acceptable explanation for the delay from 13-11-2009 and again from that day to 7-12-2009. The application has been filed on 11-12-2009, for condonation of delay of 76 days. That the Applicant did not have a mobile to contact his lawyer cannot be a good ground to condone the delay. The application appears to have been filed most casually. An opportunity was given to the Applicant to file a further affidavit to explain the delay but the same was not availed of. Although the expression sufficient cause is to be construed liberally, the Court is not expected to readily accept whatever the party alleges to explain away his default. The Court is certainly required to scrutinize the cause shown and reject it, in case there is no evidence to accept it. As observed by the Apex Court in Ram Nath Sao(AIR 2002 SC 1201) the Court is also required to take note of the fact that a valuable right is accrued to the other party which should not be lightly defeated.
Application is therefore dismissed.
N. A. BRITTO, J.
RD.
2 issues framed by the court
fornon abatement of suit, the court whether the cause for condonation of delay was sufficient
the edge court to scrutinize the cause shown and reject it in case there is no evidence to accept it
Colour shows how this judgement treated each authority
Ram Nath Sao (AIR 2002 SC 1201)Referred¶18
SHRI VIKAS BHAGDI
AMELIA GAMA
3 ORS.
N. A. BRITTO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
