MD. NIZAMUDDIN AHMED vs MD. AKRAM HUSSAIN

Heard Ms. M. D. Choudhury, learned counsel appearing for the applicant. Also heard Mr. T. J. Mahanta, learned Senior counsel, appearing for

the respondent.

This is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 818 days in preferring the connected appeal.

An objection is filed to this application.

The respondent, as plaintiff, filed a suit for realization of Rs. 8,12,000.00. The case of the plaintiff is that on the request of the defendant, whom

he knew well, he had advanced a sum of Rs. 7 lakh, as loan, to the defendant and the defendant had accepted the amount by executing a hand-

note. The plaintiff examined three witnesses. The defendant did not adduce any evidence, though he had filed written statement. The learned trial

court, by the judgement dated 25.02.2014, decreed the suit for Rs. 7 lakh with interest @ 6% per annum from the date of filing of the suit till

realization.

In the instant application, the petitioner stated that he had to go to Gujarat for some work and, before he left Darrang District, he informed his

counsel to take necessary steps in respect of the suit and also to inform him as and when he was required to come to Assam. It is stated that the

counsel engaged by him remained absent after cross-examination of two of the witnesses of the plaintiff. Despite the counsel informing the

petitioner that he was required to submit his evidence as well as that of his witnesses, the petitioner could not come to put his signature on the

affidavit as he was not granted leave by his employer. It is further pleaded that the petitioner was suffering from tuberculosis and he could contact

his counsel only in the month of June, 2015 and then he came to learn that a money execution case, being Money Execution Case No. 2/14, had

also been filed by the respondent. The counsel, on being requested, had appeared in the said money execution case. It is also stated that the

petitioner came to know about the judgement dated 25.02.2014 only on 05.07.2015 and, thereafter, he had obtained a certified copy on

21.07.2015. It is also averred that the petitioner suffered from eye problem and he could not also arrange money as he had to spend a good

amount of money for his treatment in Gujarat. Thereafter, the petitioner met his counsel on 25.02.2016 and handed over papers for filing the

appeal.

Eventually, the appeal was filed on 16.05.2016.

Ms. Choudhury has submitted that as the petitioner had to go to Gujarat and was not aware of the judgement, the appeal could not be filed in

time. It is also submitted that as the petitioner was suffering from tuberculosis and had eye problem, the same also contributed to the delay in filing

the appeal.

Mr. Mahanta, learned Senior counsel for the respondent has submitted that in support of the illness of the petitioner, no document has been

annexed in the petition and that, even with regard to the statement that the petitioner had left for Gujarat and had worked there, no documentary

evidence has been placed before the court. He submits that such statements are made by the petitioner only for the purpose of this case and,

therefore, no credence can be placed on such averments.

During the course of the arguments today, Ms. Choudhury has placed before the court a document dated 09.06.2015 of Sri Sakaradeva

Netralaya, an eye centre at Guwahati.

Mr. Mahanta is right in his submission that except making the statements, the petitioner has not backed up such statements by documentary

evidence. When the petitioner had suffered from tuberculosis is also not indicated. Even though the respondent had categorically raised the issue of

non-furnishing of relevant medical document in the affidavit that was filed on 09.08.2016, no reply affidavit has been filed by the petitioner to bring

on record any such document or to give any further explanation. In absence of any medical document evidencing that the petitioner was suffering

from tuberculosis for a particular period, it is difficult to accept such statement. The document dated 09.06.2015 of Sri Sankardeva Netralaya

shows that the petitioner had undergone SOR+RR+LPFC+EL+Re SOI under LA in the right eye on 06.06.2015 and the document indicates that

an absence from duty from 06.06.2015 for one month is necessary for restoration of his health. The document refers that signature of the petitioner

is appended. However, the document does not have any signature other than that of a person, who signed as a Medical Attendant. Assuming that

the petitioner had some eye problem, the document demonstrates that there was some disability only for a period of one month. There is a stoic

silence with regard to where in Gujarat the petitioner was employed. The name of the establishment or under whom he was employed is also not

mentioned.

No doubt, a liberal approach has to be taken when the court considers an application for condonation of delay. However, that does not mean

that the court has to accept any and every statement put forward to explain the delay. Taking of a liberal approach would arise when the

explanation is plausible. The explanation offered has to be minimally substantiated as the nature of explanation would admit of. As discussed

above, the pleas taken by the petitioner could have easily been substantiated by production of documents. The conclusion, under the

circumstances, that has to be drawn, is that the petitioner has not shown any cause which the court can hold to be acceptable, reasonable and

sufficient for the purpose of condoning the delay of 818 days.

Resultantly, the Interlocutory Application is dismissed.

The copy of the document dated 06.06.2015, produced by Ms. Choudhury, is placed on the record of this case.