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Judgment
Bibhas Ranjan De, J
The application is filed with a prayer for condonation of delay in filing COT No. 92 of 2022.
In the application it is stated that learned advocate Mr. Krishanu Banik entered appearance in the appeal being no. FMAT 591 of 2009 on behalf of the petitioners/claimants. On 06.01.2010 Hon’ble Division Bench took cognizance of the stay application and called for the records from Tribunal and also directed the Insurance Company to file requisite number of paper book. Further case of the petitioners is that after few years they contacted learned advocate of the Hon’ble High Court though their advocate appeared in the Tribunal, Malda and they did not receive any information regarding final hearing of the appeal. On 3rd week of February, 2020 petitioner no. 2/ one of the claimants went to the Hon’ble High Court and met learned advocate Sri. Krishanu Banik who also informed that no notice of hearing of the appeals was served by the learned advocate on record on behalf of the Insurance Company. Thereafter, COVID 19 pandemic started from March, 2020 and continued up to middle of the year 2022. Learned advocate has tried to settle the matter before National Lok Adalat held in High Court premises from 2014 to 2022 but no result was yielded. Learned advocate of the Hon’ble Court appearing on behalf of the petitioners/claimants came to know about hearing of the appeal in the 1st week of December, 2022. In spite of no notice of hearing of appeal as contemplated under Order 41 Rule 22 of the Civil Procedure Code was served upon the learned advocate appearing on behalf of the respondents/claimants. However, it is pleaded by petitioners that though there was inordinate delay in filing cross appeal but such delay was not intentional and it was beyond their control.
Learned advocate, Mr. Sanjoy Paul, appearing on behalf of the Insurance Company entered appearance and filed affidavit in opposition stating, inter alia, that on 06.01.2010 claimants/ petitioners were represented by the learned advocate Mr. Banik who appeared in the appeal on behalf of the claimants also withdrew sum of Rs. 7,50,000/-. It is further pleaded that after receipt of the interim compensation no steps was taken on behalf of the claimants to expedite the hearing of the appeal and learned advocate on behalf of the claimants never approach settlement of the claim through National Lok Adalat. It is pleaded that when the matter was appearing in the daily cause list before this court suddenly claimants filed cross objection together with the instant application for condonation of delay. There is no specific explanation of condonation of delay of 12 years.
On behalf of the petitioner affidavit in reply was filed denying all statement made in affidavit in opposition.
Mr. Banik appearing on behalf of the claimants has submitted that unintentional delay has explained in the petition and in support of his contention he relied on a case of M/s. Tech Sharp Engineers Pvt. Ltd. Vs Sanghvi Movers Limited reported in AIR 2022 SC4402, Ram Nath Sahu & others Vs. Gobardhan Sao & others reported in AIR 2022 SC 1201 and Collector Land Acquisition, Anantnag and another Vs. MST Katiji and others reported in 1986 SCR (2) 387.
In opposition to that, Mr. Paul, has submitted that delay of 12 years has not been explained anywhere in the application in spite of having notice of the appeal filed on behalf of the Insurance Company as learned advocate appearing on behalf of the respondents/claimants moved in the appeal for withdrawal of portion of the claim amount before the Hon’ble Division Bench on 06.01.2010.
Mr. Paul, in support of his argument, relied on a case of
• Parimal Vs. Veena reported in (2011) 3 Supreme Court Case 545
• Maniben Devraj Shah vs Municipal Corporation of Brihan Mumbai reported in (2012) 5 Supreme Court Cases 157
• Basawaraj and another Vs. Special Land Acquisition Officer reported in (2013) 14 Supreme Court Cases 81
• Lanka Venkateswaralu Vs State of Andhra Pardesh reported in (2011) 4 Supreme Court Cases 363
• Balwant Singh Vs. Jagdish Singh and others reported in (2010) 8 Supreme Court Cases 685
After careful perusal of all citations relied on behalf of the parties to this application for condonation of delay, I find that it is settled proposition of law that any appeal or application may be admitted after prescribed period if the appellant or applicant satisfied the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed period subject to notice of the day fixed for hearing the appeal, or within such further time as the appellate court see fit to allow under the Provision of Or. XLI r. 22. Under the Provision cross appeal may be filed within one month of such notice.
Mr. Paul could not show any date of service of notice for hearing of the appeal.
We should not be unmindful that we are dealing with a matter involving a beneficial legislation which was enacted by the Parliament to ensure the compensation payable as a result of motor accident in respect of death and permanent disablement.
In the aforesaid view of the matter, I am of the opinion that delay in filing cross appeal may be condoned.
Thus, the application for condonation of delay in filing cross appeal stands allowed. The application being no. CAN 1 of 2023 stands disposed of.
In re: FMA 57 of 2010 with COT 92 of 2012
Let the appeal, being FMA 57 of 2010 and the cross appeal, being COT 92 of 2012, appear in the daily list on 19th April, 2023 under the heading ‘Hearing’.