Barelal vs Narvadi

J.K. Maheshwari, J.—Heard on I.A. No. 845/11, which is an application seeking condonation of delay to file this appeal. As per the office notesheet this appeal has been filed as barred by time by 1076 days.

The facts of the present case are that this appeal has been filed on 8.11.10 u/s 100 of CPC against the judgment and decree dated 17.10.08 passed by the Additional District Judge, Ganjbasoda, District Vidisha in Civil Appeal No. 25A/2008. Application seeking condonation of delay to file appeal has been filed on 21.2.11. On passing the judgment and decree by the lower appellate court, the application to obtain the certified copy was applied on 24.10.08 which was received on 3.12.08. After deducting the period spent in obtaining the certified copy the appeal ought to be filed on 18.3.08 but it is presented on 8.11.10 causing such delay.

The explanation put forth is that the appellant an aged and illiterate person and the file was called by him through relative from his counsel''s office, as he was sick. It is further said that the respondents have started to use the way, however he has contacted his counsel who informed him regarding decree of the counter claim filed by the respondents. Thereafter, the appellant collected the file on 2.11.10 and contacted the counsel at Gwalior and got the appeal prepared. It is said that the delay has been occurred on account of illiteracy and lack of information which is bonafide and deserves to be condoned.

The reply to the said application has been filed by other side inter alia containing that the explanation is not plausible and sufficient to condone the delay and also based on incorrect facts. Looking to averments of para 4 and the affidavit which has been sworn at Ganjbasoda, the fact of contacting the Advocate at Gwalior is incorrect and not based upon bonafide. In view of the foregoing prayer is made to dismiss this appeal as barred by limitation.

After hearing learned counsel for the parties and in view of the aforesaid facts, it is apparent that arising out of the impugned judgment dated 17.10.08 after deducting the period spent in obtaining the certified copy appeal ought to be preferred on or before 18.03.08 which is filed on 8.11.10. In para 2 of the application appellant called the file from the Advocate through his relative being sick but in para 4 again he has stated that on 2.11.10 he collected the file. However, the aforesaid fact is contradictory to each other. After 2.11.10 he has contacted his counsel at Gwalior but the affidavit sworn by the appellant is of Ganjbasoda on 14.2.11 while the appeal was filed on 8.11.10. However, the said averments do not appear to be correct. In addition thereto it is not specified in the averments of the application that why appellant waited to file the appeal upto 8.11.10. At this stage referring the order passed by the Sub Divisional Officer Nateran District Vidisha filed alongwith the application under Order 41 Rule 27 dated 22.9.04 it is submitted that subsequently the revenue officer passed the order thereafter the appeal was preferred.

But I am not impressed by such submissions because after passing the order by the Revenue Officer in September, 2009 this appeal has been preferred in November, 2010. The description why the delay was caused has not been explained showing sufficiency of cause to file this appeal bonafidely. It is a trite law that appellant has to explain day to day delay indicating sufficient cause and bonafide, but has failed to establish the same.

Recently, Hon. Apex Court in the case of Office of The Chief Post Master General and Others Vs. Living Media India Ltd. and Another, has restated that unless the reasonable and acceptable explanation for the delay and there was bonafide effort then only the sufficient cause should be accepted otherwise there is no need to accept the unusual explanation put forth by the government department. Same view has been reiterated in a recent judgment of State of U.P. Thr. Exe. Engineer and Another Vs. Amar Nath Yadav, .

In view of the observation as made on facts and the law laid down by the Hon. Apex Court, in my considered opinion no case for condonation of delay to file this appeal is made out. Accordingly, this appeal is dismissed as barred by limitation.