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Judgment
The appellant has filed the instant appeal claiming to be aggrieved by the judgment and decree passed in O.S.No.92/2004 dated 07.01.2010 and the judgment passed in R.A.No.31/2010 dated 06.08.2011.
Since there is a delay of 818 days in filing the instant second appeal from the date of the judgment passed in R.A.No.31/2010, an application in I.A.No.1/2014 is filed under Section 5 of the Limitation Act seeking condonation of delay. The notice of the said application had been ordered to the respondents. The respondents have entered appearance and have vehemently opposed the application through their learned counsel by contending that the reasons as put forth in the affidavit accompanying the application does not constitute sufficient cause, on the other hand the reasons assigned are casual in nature which does not merit consideration. It is also the contention on behalf of the respondents that the appeal filed by the respondents had been withdrawn only due to the fact that the appellant had assured the respondents that the matter would not be agitated further and would be put to rest.
In the light of the objection that is put forth by the respondents, keeping in view the fact that there is inordinate delay of 818 days in filing the appeal, this Court is required to take note as to whether the reasons as assigned by the appellant seeking condonation of delay would constitute sufficient cause for such condonation. The reason as contained in para-3 of the affidavit would disclose that the appellant was very much aware of the judgment having been passed in regular appeal but the only reason put forth is that the appellant had learnt that the respondents had filed an appeal against the said judgment dated 06.08.2011 in RSA No.7311/2011. In that view, the appellant contends that the appellant intended to file a cross objection on receipt of notice in the said appeal. Since notice had not been received, on subsequent enquiry, it was found that the respondents had withdrawn the appeal in RSA No.7311/2011 on 29.10.2013 and in that view the appellant had thought it fit to file the instant appeal. Such reason as put forth by the appellant would not satisfy the requirement of explaining the sufficient cause as contemplated under Section 5 of the Limitation Act.
Even in the absence of the respondents having filed the appeal, if the appellant was aggrieved by the judgments of the Courts below, he had the independent right to file an appeal which he has not chosen to do despite being an Advocate by profession. In fact the very reasons assigned by the appellant seeking condonation of delay would run contrary to the case of the appellant inasmuch as there was no reason whatsoever which would justify the act of the appellant in putting forth such contention explaining about the knowledge of the appeal said to have been filed by the respondents yet not having taken steps to assail the judgment if he was aggrieved by the same. Therefore, the reason as assigned would not constitute sufficient cause to condone the inordinate delay. Further, the very nature of the judgments passed by the Courts below would indicate that the appellant in fact had accepted the same and has now come forward before this Court with such reasons which cannot be accepted.
Hence, the application in I.A.No.1/2014 lacks merit. The same is accordingly rejected. Consequently, the appeal is dismissed with no order as to costs.