Case Note & Summary
The petitioners, who were the original plaintiffs, had obtained a judgment and decree from the trial Court. The respondent, the original defendant, sought to appeal against that decree but filed the appeal with a delay of almost three years. The lower Appellate Court condoned the delay without imposing any costs. The petitioners challenged this order by way of a writ petition before the High Court of Bombay at Goa. The petitioners argued that there was abundant material before the lower Appellate Court to establish gross negligence on the part of the respondent in filing the appeal, and that the court had not considered that material nor given any findings based on it. The High Court, after hearing the petitioners' counsel, noted that the lower Appellate Court had not considered the material placed by the petitioners to show gross negligence. The High Court held that the order condoning the delay was unsustainable because the court had not considered the material evidence of negligence and had not imposed costs. Consequently, the High Court quashed and set aside the order condoning the delay and directed the lower Appellate Court to decide the application for condonation of delay afresh, after considering the material placed by the petitioners and after hearing both parties. The High Court also directed that the application be decided within two months from the date of receipt of the writ.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Gross Negligence - The lower Appellate Court condoned a delay of almost three years in filing the appeal without considering the material placed by the petitioners to establish gross negligence on the part of the respondent and without imposing costs. The High Court held that the order condoning delay was unsustainable as the court failed to consider the material evidence of negligence and did not impose costs. (Paras 2-4)
Issue of Consideration
Whether the lower Appellate Court was justified in condoning a delay of almost three years in filing the appeal without considering the material placed by the petitioners to establish gross negligence on the part of the respondent and without imposing costs.
Final Decision
The High Court allowed the writ petition, quashed and set aside the order dated 18th July, 2001 condoning the delay, and directed the lower Appellate Court to decide the application for condonation of delay afresh, after considering the material placed by the petitioners and after hearing both parties, within two months from the date of receipt of the writ.
Law Points
- Condonation of delay
- gross negligence
- Section 5 Limitation Act
- 1963
- costs
- exercise of discretion
- appellate court's duty to consider material
