A.U. Khan, Member Judicial - (1.) The Facts Are : A partition suit of plaintiff Shambhoo Dayal and others is decreed on 27-2-1984 Shital Din lodges an appeal in Commissioner's. On 22-11-1985 Additional Commissioner enters an order allowing the appeal ; the suit is remanded to lower court for decision afresh in accordance with directions. Aggrieved by this judgment, second appeal is filed by Shital Din on 18-9-1991. The appeal is obviously barred by time as relay is of five years and 7 months or thereabouts. An application is moved by appellant Shital Din to condone the delay in filing the appeal beyond prescribed limitation of 90 days.
(2.) Heard counsel for parties on this point alone.
(3.) In the application it has been set forth that decree of Additional Commissioner was passed on 22-11-1985 but was actually prepared on 11-3-1987. So appellant was running to Commissioner's to find out whether decree has been prepared to enable him to lodge second appeal. How I would wish that Shital Din should step his running to re-think that court has no imperative to prepare a decree unless a party moves an application for its preparation. Appellant moves on 3-9-1991 then alone the obligation to prepare the decree arose and it become ready on 9-9-1991, as documented in the copy of decree. What is the reasons of delay from 22-11-1985 to 3-9-1991 a delay of over five parts. This gross negligence is Shital Din's. It appears his sophistication has not reached a point when he should think it dishonourable to transfer his own laps to staff of the court. He had his legal remedies. Order XX, Rule 6-A (2), reads as under "Order XXII, Rule 6-A (2) - Every endeavour shall be made to ensure that he decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounces ; but where the decree is not drawn up within the time aforesaid, the court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon- (a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of Rule 1, of Order XLI be treated as the decree." Still more, Order XLI, had added the following proviso to sub-rule (2) of Rule (1) : Provided that the court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from if the counsel for the appellant certifies that the copy has been applied for and has not as yet been issued, subject to the copy being filed subsequently within time granted by the court." (13-12-1969). It is evident that there was absolutely no occasion for him to continue running from Rae Bareilly, to Commissioner's in Lucknow, if a he was deposed to lodge a second appeal in terms indicated above. I see no adequate reason to condone the delay of over five years. It is unsupported by any logic-hard, real and essentially true. It is widely believed that in a democratic system Legislature takes longer to remedy evils of omission or commission in a canon or code. Is that always so ? We see disconcerting failure all along by Shital Din to take advantage of existing provision of Order XX, Rule 6-(2) C.P.C. inserted by C.P.C. (Amend.) Act, 1976 with effect from 1-2-1977 ; this instance that there is, and may always be, a time-lag between the change in objective reality and the change in the intellectual comprehension of it. So that no effective use is made at all of this provisions by A, B or C here, there or anywhere after years have gone by.;