TMI Blog1985 (12) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... bir Metal Converters filed an appeal which was received in the Registry on 12-2-1985 along with an application for Stay and application for Condonation of Delay. No affidavit was filed in support of the application for Condonation of Delay at the time of the filing of the appeal. In the application for Condonation of Delay, it was stated that the Order-in-Original passed on 28-8-1984 was served upon the appellants on or about 29-9-1984 and since the appeal against the said order ought to have been filed before 29-12-1984, the delay in presenting the appeal be condoned. 3. The said application for Condonation of Delay came up for hearing, but on one ground or the other the case was adjourned. It is note-worthy that at one stage the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riya describing himself as ex-partner of the appellants further stated that he being elderly person, suffering from breathing trouble and under constant medical treatment, stayed far away from the factory and despite such restraints and stress he could manage to collect all the materials essential for drafting the appeal in less than three weeks time after the passing of the order on 15-1-1985. It is pertinent to note that no Medical Certificate regarding alleged illness was filed in support of the contention of the alleged breathing trouble or the constant medical treatment. It is further pertinent to note that these averments were not made in the application for Condonation of Delay filed earlier with the appeal. 8. At the time of argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent on 28-8-1984 and according to the appellants himself, the said order was received on 29-9-1984. As such the appeal in hand should have been filed on or before 29-12-1984 but it was received in the Registry on 12-2-1985 by Registered Post, though it bears the date of drafting as 7-2-1985. Thus, clearly there is a delay of about one month and fourteen days. 11. Before we proceed to consider the merits of the case, it would be useful to refer the following principles which are of general application : (a) that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing an appeal earlier, sufficient cause must be established that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient cause is shown, a party is not entitled to the condonation of the delay in question as a matter of right and the Court or authority hearing the appeal has no power to extend the time as a matter of indulgence. 12. Bearing in mind the said principles, now we proceed to consider the application for Condonation of Delay. 13. In the application for Condonation of Delay filed along with the appeal, the appellant stated that the Writ Petition No. 2458 of 1984 which was filed on 13-12-1984 came up for hearing on 15-1-1985 and the same was disposed of with a direction to follow the alternative remedy. The copy of the said order dated 15-1-1985 is on record which reads as follows : Mr. N.R. Kantawala for the Petitioners. Mr. K.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other hand, at the time of hearing, we specifically asked the learned Counsel for the appellant, Shri B.B. Gujral, Advocate whether the Writ Petition was filed in the High Court on account of wrong advice of the Counsel or under any mistake or misapprehension of law to which Shri B.B. Gujral, the learned Counsel for the appellants made a categorical statement that the Writ Petition was filed with open eyes knowing it well that the appeal lies to the CEGAT. In these circumstances, in our opinion, filing of the Writ Petition cannot be treated as a ground for condoning the delay and the contention of the appellants Counsel that the Hon ble Bombay High Court directed the appellant to file the appeal by its order dated 15-1-1985 cannot be ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or misapprehension of law. The case then set up by him was that being a patient of heart disease he remained confined, under medical advice, to bed. He was fit enough to travel on the 10th February but for want of funds, he could not reach Lucknow from Delhi on the 11th February. He produced a post-dated medical certificate, but did not examine the Doctor concerned. The appellant had an adult son who used to look after the case. In these circumstances, it could not be said that the first appellate Court exercised its discretionary power perversely or illegally so as to warrant interference by the High Court in second appeal. We therefore negative the first contention. (Emphasis supplied) (iii) In the affidavit there was a bald statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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