Allahabad High Court
Hartalika @ Munna vs Dwarika Prasad And 5 Others on 27 April, 2022
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- SECOND APPEAL DEFECTIVE No. - 309 of 2013
Appellant :- Hartalika @ Munna
Respondent :- Dwarika Prasad And 5 Others
Counsel for Appellant :- Mahesh Narain Singh,M.N. Singh
Counsel for Respondent :- A.K.Arya,Jagdamba Prasad,K.K. Singh,S.K.Tiwari
Hon'ble Rohit Ranjan Agarwal,J.
[C.M. Delay Condonation Application No. 383052 of 2017]
Heard Sri Manoj Kumar Gupta, Advocate, holding brief of Sri M.N. Singh, learned counsel for the appellant and Sri S.K. Tiwari, learned counsel for the respondent no. 2.
Delay condonation application is not opposed by the counsel appearing for the respondent no. 2.
Delay in filing the substitution application is condoned.
Delay condonation application is allowed.
[C.M. Substitution Application No. 383053 of 2017]
Heard Sri Manoj Kumar Gupta, Advocate, holding brief of Sri M.N. Singh, learned counsel for the appellant and Sri S.K. Tiwari, learned counsel for the respondent no. 2.
It is stated in paragraph no. 3 of the affidavit that respondent no. 1 Dwarika Prasad had died on 06.09.2015 leaving behind his legal heir, as mentioned in the said paragraph.
Learned counsel appearing for the respondent no. 2 does not oppose the substitution application.
Substitution application is allowed.
Let the name of respondent no. 1 Dwarika Prasad be struck off from the array of parties and name of legal heir, as mentioned in paragraph no. 3 of the affidavit, be added in his place.
Office is directed to carry out necessary substitution within a week.
[C.M. Delay Condonation Application No. 306057 of 2013]
This appeal under Section 100 of C.P.C. has been filed assailing the judgment and decree dated 09.11.2012 passed by the Additional District Judge, Court No. 1, Banda in Civil Appeal No. 13 of 2012 and the judgment and decree dated 10.01.2012 passed by the Civil Judge (Junior Division), Baberu, Banda in Original Suit No. 287 of 1996.
The appeal is reported to be beyond time by 234 days.
A delay condonation application has been moved by the plaintiff appellant wherein in paragraph no. 3 and 4 it has been stated that the appellant belongs to rural background and is not financially sound enough and, as such, time was consumed in arranging money for filing the present appeal including the court fee etc. Further, in paragraph no. 4, it is stated that the delay in filing the appeal is not intentional but the same had occasioned due to unavoidable circumstances.
A counter affidavit has been filed on behalf of contesting respondent to the said delay condonation application wherein in paragraph no. 5 it has been contended that the contents of paragraph nos. 3 and 4 of the affidavit to the delay condonation application, have been specifically denied and it is stated that the plaintiff appellant is a rich person having near about 20 acres of landed property and there are several family members of the appellant's family who are working either in government or private service. It is further averred that appellant is financially sound and there is no paucity of fund and the delay in filing the appeal is intentional.
A rejoinder affidavit has been filed wherein in paragraph no. 5 it has been stated that the contents of paragraph nos. 5, 6 and 7 of the counter affidavit have been denied but there is no specific denial to the fact that the appellant does not have 20 acres of landed property and that his family members are not in government job.
This Court, after having heard learned counsel for the parties and from perusal of the record, finds that the court fee payable in the present appeal is only Rs. 200/- whereas in paragraph no. 3 of the affidavit to the delay condonation application averment has been made that time was consumed in arranging the money for filing the appeal including the court fee. This Court finds that the ground taken in the delay condonation application does not appeal to the Court, moreover, the averment made in the counter affidavit as to the effect that appellant is having 20 acres of land and his family members are in government job, has not been denied in the rejoinder affidavit.
I find no good ground for condoning the delay of 234 days in filing the appeal.
Delay condonation application is rejected, accordingly.
[Order on Appeal]
Appeal is barred by limitation.
Consequently, appeal fails and is dismissed, accordingly.
Order Date :- 27.4.2022
Shekhar
