Hon'Ble Sharad Kumar Sharma vs Division
2022 Latest Caselaw 1709 UK

                     Office Notes, reports,
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      08.06.2022
                                                SA No. 116 of 2021
                                                Hon'ble Sharad Kumar Sharma, J.

Mr. I.P. Kohli, Standing Counsel, for the State/Appellants.

Mr. Mukesh Rawat, Advocate, for the respondents.

While considering the Delay Condonation Application i.e. IA/2/2021, filed by the defendants/appellants, seeking a condonation of 2079 days delay, which has chanced in filing the present Second Appeal, it becomes necessary to precisely deal with the factual backdrop, without touching the merits of matter, for the purposes of considering the delay condonation application.

The plaintiffs/respondents, had instituted a civil suit, being Civil Suit No. 56 of 2007, Hardev Singh and others Vs. Division Forest Officer and Another. The said Suit was contested by the defendants by filing a written statement paper No. 24(ka), and consequently, the learned Court of Civil Judge (Senior Division), district Nainital, vide its judgement dated 15th March 2012, had decreed the suit of the plaintiffs/respondents, in relation to the disputed property, lying in khata No. 83, khasra No. 395/776, having a total area of 2.424 hectares, situated in village Bandarjura, Tehsil Kaladungi, District Nainital.

It's aggrieved against the said judgement and decree dated 15th March 2012, the appellants before this Court in Second Appeal, had preferred a First Appeal, being First Appeal No. 25 of 2012, State of Uttarakhand and another Vs. Shri Hardev Singh and others.

The said appeal was dismissed by the learned Court of First Additional District Judge, Nainital, vide its judgement dated 25th June 2014. It is against these two concurrent judgements, the present Second Appeal has been preferred by the appellants with the Delay Condonation Application.

If the delay condonation application, where the appellant has attempted to explain the delay of 2079 days, itself is taken into consideration, apart from the normal stand, which has been taken by the State's counsel with regard to the fulfilment of the procedural formalities and seeking desired permission for seeking a requisite permission to file an Appeal, according to paras 4 and 5 which are extracted hereunder, the approval to file the Appeal was granted vide letter No. 669 dated 8th September 2021.

"4. That after the passing of the impugned judgment dated 25-06-2014, a legal opinion in the matter for preferring the present second appeal was sought and after receipt of the same, the revenue records searched and scrutnized the revenue records regarding wrongful, illegal and fraudulent entry of Bhumidhari in the name of plaintiffs.

5. That thereafter the necessary approval was sought for filing the present appeal which was granted vide letter No. 669 dated 08-09-2021, an exact copy whereof is annexure No. 1 to this affidavit. The said sanction letter was recd. in the office of the deponent on 27-09 2021."

It is admitted that the said letter was received in the office of the deponent on 27th September 2021. The certified copy of the order bears an endorsement, that the application for receipt of the certified copy of the order was filed on 9th October 2021, received on 18th October 2021. But, despite the permission having been granted as back as on 8th September 2021 and despite the fact that having received the certified copy of the order on 8th October 2021, the Second Appeal was preferred by the appellants before this Court, only on 23rd December 2021.

This Court is not inclined to accept the propriety of the explanation given in the delay condonation application, particularly, when the permission itself was granted on 8th September 2021. This Court doesn't see any logic, as to why the application for the receipt of the certified copy of the order was filed belatedly only on 9th October 2021, and even after the receipt of the certified copy of the order dated 18th October 2021, the Second Appeal was filed on 23rd December 2021.

Filing of the Second Appeal on 23rd December 2021, in fact, it happens to be even beyond the prescribed period of limitation provided under the Limitation Act even if it is determined from the date from when the permission was granted, to file an Appeal i..e on 8th September 2021, since the Appeal itself has been preferred beyond the prescribed period of limitation, even if it is computed from the date of the permission granted on 8th September, 2021, I don't see any logic to condone the delay. Apart from it, the knowledge of the judgement of the First Appellate Court was very well attributed to the appellant, because it was the appellants' Appeal, which was decided way back on 25th June 2014.

Hence, for the aforesaid reasons, the Delay Condonation Application is hereby rejected. Consequently, the Second Appeal too would stand dismissed.

(Sharad Kumar Sharma, J.) 08.06.2022 Mahinder/