S. BANDYOPADHYAY vs KAMAL KUMAR MITRA

THE petition for condonation of delay filed by the appellant is first taken up for hearing and disposal. We noticed that there is a delay of 176 days in preferring the appeal after receiving the impugned order of the Forum below. Heard argument advanced by the appellant. It is the case of the appellant in the condonation petition that after the impugned judgment was passed on 27.9.2002, no copy of the same was sent to the appellant by the Forum below. He applied for the certified copy on 10.10.2002, but due to Puja Vacation the copy of the judgment could not be collected by the learned Counsel for the appellant. After the Puja Vacation the Advocates took part in cease work, and it continued up to 26.12.2002. So the said copy of the judgment was made available to the appellant by his Advocate on 8.1.2003. Being dissatisfied with the order the appellant consulted his Advocate through Medical Defence Consultancy India (P) Ltd. who were handling the case on behalf of the appellant. THEn he was advised to file revision against the above mentioned impugned order. On 1.4.2003 this matter was referred to M/s. Sanderson and Morgans, Advocates by Medical Defence Consultancy India (P) Ltd. to file Revision Application. By issuing a letter dated 2.4.2003, Advocates of M/s. Sanderson and Morgans advised that as the order dated 27.9.2002 is a final order, so no revision would be against the said order but an appeal has to be preferred against the same. THEreafter all required papers including certified copy of the order were sent to M/s. Sanderson and Morgans by Medical Defence Consultancy India (P) Ltd. on 30.4.2003. After drafting the appeal papers M/s. Sanderson and Morgans forwarded the same to M.D.C.I. (P) Ltd. for approval of the appellant on 3.5.2003 and the same was returned to M/s. Sanderson and Morgans on 13.5.2003. THE appeal papers were ready for filing on 15.5.2003 and the same were immediately signed and filed on 23.5.2003.

IT is submitted by Mr. Sil, the learned Advocate for the appellant, that the delay was not intentional and if the delay is not condoned and the appeal is not admitted the appellant will be irreparably prejudiced, not being able to challenge the impugned judgment. In this context the Hon''ble Supreme Court held [Reported in (1996) 3 S.C.C. 132] that "...delay in preferring the appeals is required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay". In another matter the Hon''ble Supreme Court held [reported in (1998) 7 S.C.C. 123] that "the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. The timelimit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly..." The settled principle in respect of condonation of delay (vide the decision reported in A.I.R. 1997 Supreme Court 1353) is that the Court should not adopt a pedantic attitude towards the condonation of delay. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated.

Hence, 176 days'' delay has taken place and for that the explanation which has been offered is in our opinion on the whole not totally unsatisfactory and considering the well settled principle held by the Apex Court in a number of judgments that Court should take reasonable and liberal view regarding condonation of delay, we are inclined to observe that this explanation is on the whole convincing for the purpose of our coming to a finding that the delay of 176 days should be condoned.

ACCORDINGLY it is ordered that the petition for condonation of delay under consideration be allowed, but however without any cost and the question of admission of the appeal be taken up for hearing. Regarding the question of admission of the appeal we have heard the learned Advocate for the appellant. On perusal of memo of appeal we are of the opinion that the appeal deserves admission and let it be admitted and registered. Petition allowed.