- (1.) Delay Condonation Application No. 889 of 1992 is taken up for order. This is an application to condone the delay in filing the appeal. The second appeal has been filed against the judgment and decree dated 6.12.1988 passed by the 9th Additional District and Sessions Judge, Gorakhpur in appeal No. 42 of 1985 arising out of the judgment and decree dated 15.1.1985 passed by the 4th Munsif, Gorakhpur in Original Suit No. 594 of 1982 (Mahatam and others v. Ram Subhag and others). The suit was filed by the appellant (plaintiff), seeking permanent injunction over the property in suit. The suit was dismissed. The appeal No. 42 of 1985 filed against the aforesaid judgment and decree has also been dismissed vide judgment and order dated 6.12.1988. This appeal was filed in the year 1992 and as per the report of the stamp reporter dated 11.8.1992, it is beyond time by 1058 days. The delay has been explained by stating that the respondent-defendant has also filed a suit No. 700 of 1982 before 5th Munsif, Gorakhpur for the same relief. The application filed by the appellant for consolidating both the suits was rejected. The suit filed by the respondent was decreed on the basis of the compromise dated 28.11.1984 and the appeal filed by the plaintiff was allowed on 16.2.1991 and the matter was remitted back on 26.2.1991 for fresh decision. The respondent, in this case, has filed application No. 142-C for withdrawal of the suit. The said application was allowed and the suit was dismissed as withdrawn on 1.12.1991.
(2.) The appellant's suit No. 594 of 1982 was dismissed vide judgment and decree dated 15.1.1985 passed by the 4th Munsif, Gorakhpur. The appeal filed by the appellant against the aforesaid judgment and decree was also dismissed on 6.12.1988, against which the present appeal has been filed.
(3.) It is stated in paragraph No. 5 of the affidavit filed in support of the delay condonation application that the appellant was advised by the local counsel not to file appeal against the judgment and decree dated 6.12.1988 passed in the appellant's appeal. The appellant has not even stated the name of the counsel who has given advice not to file appeal against the judgment and decree dated 6.12.1988 passed against the appellant dismissing the appeal.;