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M/S SARASWATI UDHYOG versus KAMLA CHEMICALS

High Court of Rajasthan

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M/S SARASWATI UDHYOG v KAMLA CHEMICALS - CFA Case No. 02219 of 2004 [2004] RD-RJ 725 (14 December 2004)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

--------------------------------------------------------

CIVIL FIRST APPEAL No. 02219 of 2004

M/S SARASWATI UDHYOG

V/S

KAMLA CHEMICALS

Mr. SUDHIR SHARMA, for the appellant / petitioner

Mr. PC SINGHVI, for the respondent

Date of Order : 14.12.2004

HON'BLE SHRI N P GUPTA,J.

ORDER

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Heard learned counsel for the appellant on the application under

Section 5 of the Limitation Act.

The only ground given is that the proceedings initiated under

Order 37 was not within the knowledge of the petitioner because of the death of his elder brother. Notices were received by the Manager and the papers were not brought to his knowledge, and ultimately, the application was submitted and the same was rejected. This pleading itself shows that the petitioner submitted application in the trial

Court, which was rejected. Thus, the pleading is self-contradictory about the proceedings having not been brought to his knowledge. Then for explaining the delay, the only reason given is "that, after the rejection of this application, petitioner was not in a position to approach this Hon'ble Court and file appeal against the order impugned." The petitioner has not given any reason about his not remaining in a position to approach this Court. Then it is vaguely alleged that at one stage he lost his eyes, and he was not able to see anything, and has alleged that he is still not feeling well, and has not come out of the shock because of death of his elder brother.

It is informed by the learned counsel for the respondent that the death occurred much before filing of the suit itself. The petitioner has not disclosed anything, as to when did he suffer injury in the eye, nor he has placed any material to show the magnitude of the injury.

Thus, to say the least, the application does not disclose any sufficient cause, whereby the appellant may have been prevented from filing appeal within time.

The application under Section 5 of the Limitation Act is, therefore, dismissed. Consequently, the appeal is also dismissed as time barred.

Learned counsel for the appellant then submits that the court fees paid by him on the memo of appeal be ordered to be refunded. According to the provisions of Section 61(2) of the Rajasthan Court Fees and Suit

Valuation Act, half of the court fees is directed to be refunded to the appellant. The registry is directed to issue requisite certificate of refund.

( N P GUPTA ),J. /tarun/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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