Jawahar Lal Mundey vs The Oriental Insurance Co. Ltd. and Others

Kailash Gambhir, J.—By way of this application, the appellant seeks condonation of 335 days delay in filing the present appeal.

Counsel for the appellant contends that the delay has primarily taken place on account of the appellant being under arrest since 11th July 2002. Counsel also contends that the appellant was granted bail only on 24th July 2007. Counsel further contends that the present appeal has been filed by the appellant through his wife and therefore, there are reasonable and sufficient grounds for the condonation of delay in filing the present appeal.

Mr. R.B. Shami, counsel appearing for the insurance company vehemently refutes the submissions made by the counsel for the appellant. The counsel submits that the appellant has deliberately concealed material facts from this Hon''ble court and has also tried to mislead the court. The contention of the counsel for the respondent is that show cause notice in the MACT matter was issued by the court and pursuant thereto the appellant had appeared and filed Vakalatnama on 21st August 2003 in favour of Shri N.K. Sharma and Shri Jitender Kumar Sharma, Advs. The said Vakalatnama filed by the appellant was duly attested by the learned ASJ, Karkardooma Court, Delhi. After filing the said Power of Attorney by the appellant written statement was also filed before the tribunal duly signed by him and his advocates. The said advocates engaged by the appellant had been appearing before the tribunal on number of dates. The contention of the counsel for the respondent is that the appellant has not made a true disclosure of all these facts and it is not a case where the appellant was not properly served before the tribunal or was not aware of the MACT case filed against him by the claimants.

Counsel for the appellant submits that the wife of the appellant was not fully aware of the facts of the said appearance made by the appellant through the advocates or even of filing the written statement by him. Counsel thus, contends that since execution proceedings were filed against the appellant and therefore, in a hurry the present appeal was filed by the wife of the appellant. Counsel also contends that the appellant has a strong case on merits to succeed and therefore, the delay in filing appeal by condoned.

I have heard learned Counsel for the parties and have perused the records.

Although, there is no dispute that the appellant himself did not appear before the MACT court as he was under arrest w.e.f. 11th July 2002 and was released on bail only on 24th July 2007. The Vakalatnama in the case was filed on 25th August 2003 and written statement was filed on 13th December 2003. As per the appellant he was not in position to pursue the said case and was not even aware about the final outcome of the case. Furthermore, the present appeal was filed by the appellant through his wife which again shows that the appellant continued to be behind the bars even on the date of filing the appeal. Although, the appellant being in jail must not have been in a position to personally monitor his case yet it is difficult to believe that the Parokar, who is none else but wife of the appellant was ignorant about the filing of the MACT petition against him and also of his engaging two advocates to represent him before the MACT court and also of filing his written statement. It is the appellant''s own case that the wife was enlarged on bail on 10.05.2005. It cannot be ruled out that after the arrest of the appellant, wife of the appellant must have been in constant touch with her husband and would have certainly known the said fact of his appearance before the MACT court through advocates. It is a settled legal position that for claiming any equitable relief or discretion of the court the party must approach the court with clean hands. In para 5 of the application blatantly the appellant has stated total falsehood. Para 5 of the said application is reproduced as under:

That the appellant has no knowledge of the pendency of the suit No. 284/04 in the court of Shri A.S. Jaichandra, learned P.O., MACT and nobody has informed to the appellant with regard to pendency of the case.

Not only this in the affidavit filed in support of the said application the appellant has stated that she is fully conversant with the facts of the case and the contents of the application which are true and correct to her knowledge based on the information derived from the court records. Once averments of this nature are made in the affidavit stating that the information is based on the information as derived from the court records certainly at least advocate must have inspected the court records before filing the present appeal. It is generally seen that for every lapse the advocate engaged in appeal puts blame on the advocate who appeared before the tribunal. This is not a healthy practice. No indulgence can be shown to the person who is guilty of misleading the court.

Dismissed.