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

  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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL APPLICATION NO.9753 OF 2016 IN SAST/12207/2016

Saw. Lata  Pravin Chandan Vs Kashinath Ramji Shinde (Died)

Through Legal Heirs.

CORAM : SMT.VIBHA KANKANWADI, J.

Dated : 25-04-2019.

Print Page

Landmark Judgment on appreciation of evidence of witness whose cross-examination could not be conducted due to death or illness

 I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity.

In the High Court of Delhi

Appellate Civil

(Before H.R. Khanna, J.)

Krishan Dayal Vs  Chandu Ram

R.S.A. No. 28 of 1962

Decided on July 8, 1969

Citation: 1969 SCC OnLine Del 134 : ILR (1969) Del 1090

Print Page