Monday, December 25, 2023

Written objection on limitation application in a criminal appeal

 

District : South 24 Parganas

In the Court of the Learned District & Session Judge, at Alipore, South 24 Parganas.

 

                                                          Criminal Appeal no. 198 of 2017

 

                                                          In the matter of :

Shri Indranil Biswas @ Raja, and another,

                             ______Appellants

-      Versus –

 

Smt. Rani Biswas and Others,

                   ______Opposite Parties

 

Written Objection by the Opposite Parties, on an application under Section 5 of the Limitation Act’ 1963, placed by the appellants.

 

The humble petition on behalf of the above named Opposite Parties, most respectfully;

 

Sheweth as under :

 

1.   That the application under Section 5 of the Limitation Act’ 1963, is not maintainable in its present form, either in terms of the facts or in the terms of the Law, thereof.

 

2.   That the present appeal under Section 29 of the Protection of Women from Domestic Violence Act’ 2005, has been preferred by the appellants respondents, challenging the Order dated 25-08-2015, passed by the Learned 1st Court of the Judicial Magistrate, at Alipore, South 24 Parganas, in ACM Case no. 2672 of 2014, only on 15-09-2017, on and after expiry of 738 ( Seven Hundred and Thirty Eight Days ) only, and therefore placed an application under Section 5 of the Limitation Act’ 1963, for condonation of such delay in preferring their appeal, and whereas the same has been gone through by the opposite parties herein and do not found any sufficient cause has ever been shown and day to day delay and the reasons has not been described in the contents and purports of the said application under Section 5 of the Limitation Act’ 1963, and thus liable to be dismissed in terms of the Law.

 

3.   That the Opposite Parties state and submit that the appellants has taken plea that their Learned Advocate mislead them in the order under challenge, before the Learned Court below, at the first and then at the second the appellant no.1, was suffering from Schizophrenia and whereas on such two aspects plea thereof, the appellants seeks to get condonation of delay for 738 ( Seven Hundred and Thirty Eight Days ) only, in preferring their appeal, before the Learned Court, without any sufficient cause and reasons so far, in detail descriptions thereof on day to day basis, and thus the application under objection is liable to dismissed with cost thereof in the interest of administration of justice.

 

4.   That the Opposite Parties state and submit that the parameter to consider the application under Section 5 of the Limitation Act’ 1963, is at first as of Sufficient Cause which prevent the appellant in preferring the appeal before the Learned Court within the prescribed period of Thirty days in terms of Section 29 of the Protection of Women from Domestic Violence Act’ 2005, and such delay must be described on day to day basis, thereof in terms of strict facts, so, far, which absolutely absent on the part of the appellant, and therefore liable to be dismissed, in the interest of administration of justice.

 

5.   That the Opposite Parties state and submit that the xerox copies of the medical treatment papers as annexed in annexure “B” of the application, as appeared are not sufficient to described as sufficient one in considering at the length of period as of 738 ( Seven Hundred and Thirty Eight Days ) only, and those are appeared as of manufactured and suspicious one, and thus in view of such facts, the same cannot be considered and thus the application under Section 5 of the Limitation Act’ 1963, is liable to be dismissed inlimnie, in the interest of administration of justice.

 

6.   That the Opposite Parties state and submit that the Protection of Women from Domestic Violence Act’ 2005, is a Social Legislation, enacted in a view to provide expeditious relief to the women, and whereas the present endavour of the appellants are straight denial and refusal in making payments of monetary relief as directed in order under challenge, and therefore nonpayment of monetary relief to the opposite parties by the appellants are prejudice the rights as decided by the Learned Court below, in terms of the facts, as well as in terms of the Law, thereof, and thus the present application is liable to dismissed inlimnie, at once, in the interest of administration of justice.

 

7.   That the Opposite Parties state and submit that the appellants herein did not make any single payments, as directed for in terms of the order under challenge in the present appeal, to the opposite parties, and whereas the opposite party no.1, herein is the wife of the appellant no.1, who does not have any sources of income and whereas the opposite parties nos. 2, and 3, are the minor female child of the opposite party no.1, and the appellant no.1, as of husband to the opposite party no.1, and the father of the opposite parties no. 2, and 3, refused and neglect to take care of them, and even after having the order and directions of the Learned Court below, refused and disobey the direction and order of the Learned Court below, with deliberate motive, and thereafter come up with unclean hand in preferring the present appeal on an expiry of substantial period of time, i.e. year after year, without any sufficient cause and cogent reasons, thereof and thus the present application is liable to be dismissed inlimnie, and at once, in the interest of administration of justice.

 

8.   That the Opposite Parties state and submit that the appellants are not due diligent in preferring their appeal, and deliberately avoiding due process of Law, as prescribed by the Learned Lower Court below, viz., Order dated 28-05-2015, in ACM Case no. 2672 of 2014, and therefore the present application under objection is liable to be dismissed inlimnnie at once, in the interest of administration of justice.

 

9.   That the Opposite Parties state and submit that the M. Execution Case no. 36 of 2017, arising out of ACM Case no. 2672 of 2014, is pending before the Learned 1st Court of Judicial Magistrate, at Alipore, South 24 Parganas, as the said Execution proceeding is for the demand of Rs. 4,84,000/- ( Rupees Four Lakhs and Eighty Four Thousand ) only, for the period September’ 2015 to June 2017, and the opposite parties are not in receipt of their entitlement, till date, even after the appellants made their appearances in such execution proceeding, and therefore the present application under objection is liable to be dismissed inlimnnie at once, in the interest of administration of justice.

 

10.                That the Opposite Parties state and submit that the application under objection in its entirety and proprietary, entitled to be dismissed inlimnnie at once, in the terms of the facts as well as in terms of the Law, and more particularly, in the interest of administration of justice.

 

11.                That unless the Learned Court dismissed the application under objection, the opposite parties will highly prejudice and suffer with irreparable loss and injury, thereof.

 

12.                Thant the balance of convenience and in conveniences are in favour of the opposite parties, and the appellants will not prejudice.

 

13.                That this application is made bonafide and in the interest of administration of justice.

 

It is therefore prayed that your Honour would graciously be pleased to allow this application and to dismissed the application inlimnnie being the application under Section 5 of the Limitation Act’ 1963, filed by the appellants, in the interest of administration of justice, and or to pass such other necessary order or orders and or further order or orders, as your Honour may deem, fit, and proper for the end of justice.

 

And for this act of kindness, the Petitioners, as in duty bound shall ever pray.

 

 

 

 

 

 

 

 

 

 

 

 

Verification

 

I, Smt. Rani Biswas, Wife of Shri Indranil Biswas, being the opposite party no.1, do hereby verify this petition and states that the statements made in the foregoing paragraphs of this petition are true to the best of my knowledge and belief and I Sign this verification on this _______the day of _______________2018, at Alipore Judges’ Court, Kolkata.

 

 

 

Smt. Rani Biswas

Identified by me,

 

Advocate.

 

Prepared in my Chamber,

 

Advocate

Date : _______________2018.

Place : Alipore Judges’ Court.

 

 

 

 

 

 

 

 

 

 

A F F I D A V I T

 

I, Smt. Rani Biswas, Wife of Shri Indranil Biswas, aged about ________years, by faith Hindu, by Occupation House Wife, presently compelled to residing at C/o. Suresh Gomes, Village – Sukdevpur, Post Office – Ganipur, Shivrampur Road, Vivekananda Park, Police Station – Maheshtala, Kolkata – 700 141, District – South 24 Parganas, do hereby solemnly affirm and declare as follows :

 

1.   That I am the Opposite Party no.1, in the present Criminal appeal, and the Opposite Parties nos. 2, and 3, are my minor female children, whom I am representing as of Natural Gaurdian and being mother of them.

 

2.   That the contents as stated in my objection petition, are true to the best of my knowledge and belief and nothing is concealed therein.

 

3.   That I am an Indian National.

 

 

DEPONENT

Identified by me,

 

Advocate.

 

Prepared in my Chamber,

 

Advocate.

Date : _______________2018.

Place : Alipore Judges’ Court.

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