Bombay HC: When court should not condone delay in filing of appeal on the ground of illness of appellant ?

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CIVIL APPLICATION NO.9753 OF 2016 IN SAST/12207/2016
Saw. Lata  Pravin Chandan Vs Kashinath Ramji Shinde (Died)
Through Legal Heirs.
Dated : 25-04-2019.

At the outset it can be said that the delay of 1106 days is huge and inordinate. Now it is required to be seen as to whether the present applicant has given any reasonable and sufficient ground to condone the same. We cannot at the same time forget a fact that, she was absent throughout the trial before the Trial Court and the matter has proceeded ex-parte against her. Though this a fact

definitely she can challenge the Judgment and decree but then when there is delay in filing second appeal we are require to consider whether there is sufficient and reasonable ground. The main ground which has been harped upon by the applicant is that she is suffering from brain disease. The report dated 25-01-2013 says that, “The findings are within normal limits. No diagnostic abnormality is detected in the Brain Parenchyma.” However, it appears that medicines were given and she continued to take the said medicines. Thereafter, there is report of C T Brain – Plain dated 22-02-2016 which says that, “Contigeous axial sections were taken. Brain parenchyma reveals normal values. No evidence of infarct, SOL, IC bleed. Ventricles, cisterns, cortical sulci. No mass effect or mid line shift noted. Cerebellum and brain stem appear normal. Bony calvarium appear normal.” The impression given by the consultant radiologist is that it is normal study. Thereafter there are reports of blood. {Para 8}

9. The applicant has not field a single document issued by Dr.Makrand Kanjalkar showing that, she is suffering from Meniere disease. Whatever documents have been produced on record i.e. the reports of C T Scan and MRI. On the face of it they say that the findings are within normal limits. It will not be out of place to refer a prescription given by Dr. Makrand Kanjalkar on 25-01-2013 wherein certain tablets were prescribed and one tablet i.e. tablet Stugeron was prescribed and it is stated that, to be taken only after giddiness. Even if for the sake of arguments it is accepted that, she is suffering from Meniere disease, it can be said to be disorder of the ear like Vertigo. There are no documents produced on record showing that she was admitted to hospital for months together

though respondent No.3 to this application is stating the said fact. In fact respondent No.3 has gone to the extent by saying that the applicant is suffering from brain tumour when in fact it is not the

case of the applicant also. Another fact that is required to be noted is that, applicant had appeared before the executing Court on 30-02-2014 through advocate, therefore if she can take part in the legal process through advocate then there was no hurdle for her to file second appeal. When it comes to delay of 1106 days though now the law is settled that each and every days delay need not be meticulously explained yet there has to be substantial compliance of the explanation to be given in respect of the entire duration. At the cost of repetition it can be said that, there is no document produced on record by the applicant showing that she was hospitalized. That means if she was taking treatment on OPD basis then it cannot be taken as a reasonable and sufficient ground to condone the delay of 1106 days. Under such circumstance, the application deserves to be rejected.

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