Gita Kwatra vs State and Others

Shiv Narayan Dhingra, J.—By this petition, the Petitioner has assailed an order dated 28th September, 2010 passed by learned Additional Sessions Judge allowing an application u/s 5 of Limitation Act moved by the Respondents No. 2 and 3 seeking condonation of delay in filing the appeal before the court.

In this case, Respondents No. 2 and 3 had assailed an order dated 5th February 2010 passed by Special Executive Magistrate by filing a revision petition. However, the Petitioner herein took an objection that a revision petition would not be maintainable as an appeal would lie against the order of Special Executive Magistrate. On this, the Respondents withdrew the revision petition with liberty to file an appeal. Thereafter, Respondents No. 2 and 3 herein filed an appeal along with an application u/s 5 of Limitation Act seeking condonation of delay of the period spent by them in revision. This application was allowed by the learned first appellate court by the impugned order. The Petitioner (Respondent before the first appellate court) has preferred this revision on the ground that the period spent in pursuing revision petition could not be condoned and sufficient grounds had not been given by the Respondents as to why the appeal was not filed at first instance. It was submitted that the Respondents herein were guilty of negligence and negligence cannot a ground for condonation of delay. 3. In J. Kumaradasan Nair and Another Vs. IRIC Sohan and Others, Supreme Court observed that although the provisions of Section 14 of Limitation Act are not attracted in case of appeals but the principles of Section 14 would be applicable in condonation of delay in appropriate cases and the time spent in proceedings before a wrong forum can be considered sufficient explanation if the petition moved before a wrong forum was bonafidely moved.

In Mata Din Vs. A. Narayanan, , Supreme Court observed that dismissal of an application by the High Court u/s 5 of Limitation Act and refusal to condone the delay on the ground that the advocate of 34 years standing could not make a mistake in law, was unjustified and a mistake of a counsel in certain circumstances can be taken into account in condoning the delay although there was no general preposition that the mistake of a counsel is itself a sufficient ground. The Supreme Court further observed that if there was nothing to show that the error committed by the advocate was tainted by a malafide motive, in such circumstances there was justification in extending the time u/s 5 of Limitation Act.

In view of above, I consider that the trial court was justified in condoning the delay in preferring an appeal in this case. There are no merits in this petition. The petition is hereby dismissed with no orders to costs.