Anil Kumar Pandey vs INDER SINGH

-THE Complaint was decided by the learned Forum, Nainital on 4.10.2001. THE appeal has been filed on 23.3.2004 after about 2 years 5 months, whereas the appeal should be filed within a month.

FROM the copy of the original order, it appears that the judgment was ex parte. The appellant Sh. Amit Kumar Pandey was not personally served. He was presumed to have been served. In the condonation application, the appellant has alleged that in the interest of justice and equity the delay in filing appeal may kindly be condemned. Really the applicant is not entitled to any condonation but is entitled to be condemned as prayed. However even if we proceed to see the grounds for condonation, in the affidavit it is alleged that the complainant filed execution before the learned Forum. In para 4 of the affidavit, it is alleged that as soon as the appellant knew about the execution proceedings, he filed restoration application before the District Forum. Restoration application appears to have been filed on 15.10.2003. It appears that by this the appellant wants to say that nearby 15.10.2003, he knew about the orders. Firstly this allegation is not correct and secondly even if it is correct then also appeal should have filed by 15.11.2003 but still about 4 months have been availed by the appellant. It is alleged that the appellant was advised by his Advocate that the only remedy available is restoration application, therefore, he filed the restoration application immediately. Then certain pleas regarding execution application have been taken. Again in Para 10 it is said that now the appellant''s Counsel has advised him to file the appeal, therefore, he has filed this appeal. Now does not mean on what date when each day''s delay is to be explained. It is alleged that delay in filing the appeal is due to lack of legal knowledge.

Firstly the restoration application is still said to be pending. We should not give a finding which may affect the restoration application but from the records it is clear that wife of the complainant was appearing before the learned Forum in the execution proceedings. On 18.11.2002, she has appeared in the execution proceedings and she took time. It cannot be said that neither there is any such case that the wife of the complainant was on strained relationship with her husband and she never informed the appellant about the execution proceedings. Knowledge to the wife shall be presumed to be knowledge of the husband and, therefore, it is incorrect to say that about 15.10.2003, the appellant knew about the proceedings. In the restoration application the date of knowledge is said to be 10.10.2003, which is manifestly incorrect.

THE ruling referred by the learned Counsel for the parties are not applicable to the facts of the present case, when the date of knowledge to the appellant is found to be in 2002, itself. It is not because of any advice by the Counsel that the appeal has been filed so late. We do not want to go into the controversy whether appeal shall lie or not but in the teeth of the facts of the case, the condonation application is fit to be rejected and is accordingly rejected. Appeal is accordingly dismissed as barred by time. Appeal dismissed.