Bhagwan Singh vs Smt. Jagdish Kaur

Prem Chand Jain, J.—The appeal came up for hearing before the Bench on July 22, 1977, when the following order was passed.

Delay condoned.

Appeal admitted.

Now this application has been filed u/s 151 read with Order 41, Rule 3-A, as amended of the Civil Procedure Code, praying that the delay could not legally be condoned without issuing notices to the applicant. In support of his contention, the Learned Counsel for the respondent applicant relied on sub-rule (2) of rule 3-A of Order 41, Civil Procedure Code, which reads as under:

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.

This contention of the Learned Counsel is not controverted by the Learned Counsel appearing for the appellant. Even otherwise we find from the bare reading of sub-rule that the application for condonation of delay bad to be decided after issuing notice to the applicant (respondent in appeal).

In this situation we recall the order of the Bench dated July. 28.1977 by which the delay in filing the appeal was condoned.

The matter of condonation of delay has now been heared by us.

After going through the averments made in C.M. No. 1645-C-11 of 1977, filed u/s 5 of the Limitation Act, we find that no plausible case has been made out for condonation of delay. Absolutely vague allegations have been made and on the basis of such allegations we find ourselves unable to condone the delay. Accordingly we find that no honest bona fide mistake was committed by the appellant in presenting the appeal beyond the period of limitation. In this view of the matter we dismiss the application for condonation of delay. Consequently the main appeal (F.A.O. No. 44-M of 1977) is also dismissed.