TMI Blog2003 (10) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... e, period occupied comes to 99 days. Since period of limitation for filing appeal being 60 days, 39 days delay is caused in filing the appeal. 5. Pleadings of the petitioner are like this : Opposite party made an application on 23.8.2002 seeking review of an order passed by CERC. The petitioner also made such an application before CERC for review of the same order. Both the review petitions are still pending for disposal. On 20.9.2002 petitioner was advised by his advocate in Delhi in Fax message to file an appeal, because respondent, in addition to review petition, brought an appeal before Delhi High Court. Immediately thereafter, the petitioner consulted his advocate in Cuttack. Then, he filed the present appeal on 26.9.2002. That way, therefore, occasioned the delay in question in filing the appeal. 6. Senior Counsel Shri N. C. Panigrahi for petitioner canvasses for condoning delay in filing the appeal, Some decisions in support of his contentions are relied upon by him. 7. Shri Jayant Das, Senior Advocate for the opposite party urged like this : Appeal being barred by prescription of time is not maintainable. Only upon sufficient cause being shown as contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should receive a liberal construction. 12. In the case of Briz Inder Singh v. Kanshiram reported in 1997 P C 156, it was observed that true guide for a Court to exercise the discretion under Section 5 of the Limitation Act is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Sakuntala Devi Jain v. Kuntala Kumari reported in 1969 S.C. 575, a Bench of 3 Judges have held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. 13. In Concord of India Insurance Company Ltd. v. Nirmata Devi MANU/SC/0384/1979) counsel misled a litigant into delayed pursuit in his remedy, It is a case of negligence of the Counsel. The default in delay was condoned. In the case of Lala Mata Din v. A. Narayanan reported in MANU/SC/0621/1969. Supreme Court held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a devised cover on liberal purpose. In that case it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 124(a) of the Act either after the initial period of six months or the extended period has already expired. The law as contemplated under Sub-section (2) of the said Act says that where, any goods are seized under Sub-section (1) and no notice in respect thereof is given under Clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the persons from whose possession they were seized : Provided that the aforesaid period of six months, may on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months. Mr. Das, learned counsel appearing on behalf of opposite party strenuously argued not to condone delay in bringing the appeal relying on the above decisions. All that he urged is that sufficient cause being not shown in the present case, the appeal filed beyond the period of limitation is bound to be dismissed. In my considered view the decisions cited by Mr. Das as referred to above do not apply to the case at hand. That apart, Shri Das has cited the decision rendered in 1963 GJX 0134 (Union of India v. Ram Charan and Ors.). In this case, the suit was abated. Appellant did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was considered. In this case, appellant filed an application under Section 5 of the Limitation Act. There was one day's delay caused in filing the appeal. Reason shown for condonation of delay was Ramlal, one of the partners of the appellant's firm fell ill. He was in charge of the litigation, That was the last date for filing the appeal. In support of the application, he filed an affidavit and also a medical certificate showing that Ramlal was ill on the last date of filing appeal. The Respondent refuted contentions of the appellant stating that the appellant had not shown that its partners were diligent during the major portion of the period of limitation allowed for appeal; and since they put off the filing of the appeal till the last date of period of limitation, the illness of Ramlal cannot be said to be sufficient cause for condoning the delay though it was only one day's delay. The learned Judicial commissioner before whom the matter was sub judice came to hold that the appellant's partner had shown lack of diligence and negligence during whole period of limitation allowed for the appeal. Accordingly, he rejected the application for condonation of delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant who depends on his Advocate in Delhi on whom his faith has been reposed, is said to have shown sufficient cause preventing him from filing the appeal within time, that is, from last date of filing the appeal till the date on which it was actually filed. Taking into account all the above aspects, I hold that it is a fit case where the expression sufficient cause need to be liberally construed particularly when the appellant has not been found negligent. His Advocate in Delhi intimated the appellant to go for an appeal against the impugned order because the opposite party (respondent) filed an appeal in Delhi High Court. He ought to have communicated his advice, to his client (appellant) much earlier. This shows there was a communication gap between them. This lack of communication between the Counsel in Delhi and the appellant in Orissa cannot be lost sight of. For the mistake of his Advocate the appellant should not suffer when his right to prefer appeal in the Orissa High Court persists. Moreover, when tariff was fixed by the CERC on the petitioner (appellant) for supplying power from the Talcher Thermal Power Station, it involves substantial question of law for which subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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