Uma Handicrafts vs Shyam Sunder Aggarwal And Ors.

S.N.H. Zaidi, J

Mr. Tyagi submits that the reply to the application has been filed on 16.3.2012. Mr. Sharma admits that he has been supplied with the copy of the reply. Mr. Singh submits that Vakalatnama has been filed today and reply has already been filed on 25.4.2012. Though reply has been filed by respondent No. 2 with delay, yet the delay is condoned and the reply is taken on record.

Heard parties' Counsel on application "(LA. No. 782/2011) filed under Section 5 of the Limitation Act for condonation of delay in filing the appeal

According to Mr. Sharma, the order impugned was passed by the learned DRT, Jaipur on 6.4.2009, but due to wrong advice rendered to the appellant no appeal was filed before this Tribunal and a writ petition was filed before the Hon'ble Rajasthan High Court at Jodhpur some time in 2010. Mr. Sharma further submits that the said writ petition remained pending before the High Court up to 26.7.2011 when, on the request of the petitioners, it was allowed to be withdrawn with a liberty to approach the appropriate forum for the redressal of its grievance. He also submits that thereafter the certified copy of the order was applied for and obtained, but the same was misplaced by the Court clerk of the petitioners' Counsel and could be traced out some time at the end of September, 2011 and immediately thereafter this appeal was filed on 3.10.2011. According to Mr. Sharma, since the Hon'ble High Court had given liberty to the appellant to approach the appropriate forum, therefore, the delay occurred while seeking remedy before a wrong forum stood condoned. The learned Counsel has also drawn my attention to file provisions of Section 14 of the Limitation Act in support of his contentions, which reads as under:

Exclusion of time of proceeding bona fide in Court without jurisdiction-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same parry for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in Rule 2 of Order 33 of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under Rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.

Mr. Sharma, however, fails to disclose the exact date of filing of the writ petition before the Hon'ble Rajasthan High Court. Section 14, as enumerated above, provides for exclusion of time of proceeding with due diligence in good faith in a wrong forum bona fide. Even excluding the period consumed before the High Court, the appeal has been filed much beyond the period of limitation period of 45 days provided under Section 20 of the RDDBFI Act. The contention of Mr. Sharma that the appellant resides in a remote village does not appear to be tenable as even the writ petition was filed after more than 7/8 months of passing the impugned order, as the registration number of the writ petition (08161/2010) suggests. The affidavit of the Court clerk of the Counsel who was pursuing the writ petition has not been filed in support of the contention of alleged misplacing of the copy of order of the Hon'ble Court.

Considering the above circumstances, I am convinced that the appellant has failed to show any sufficient cause for the delay in filing the appeal to warrant any indulgence in its favour. The application is without any merit and is dismissed. Since the appeal has been filed beyond the period of limitation, it is dismissed as time-barred.

Copy of this order be furnished to the parties as per law and be sent to the DRT concerned.