S.P.PANDEY, j. - (1.) AN application for recalling the order dated 5-8-2005, passed by this Court, vacating the order, dated 5-3- 2003, by which status quo has been ordered to be maintained till further orders, has been filed on behalf of the appellant, Nagar Palika Parishad against which objection on behalf of respondent No. 4, Saurabh Gupta has been filed on 28-10-2005.
(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that after the suit of the plaintiff under Section 229-B of the UPZA and LR Act was dismissed by the learned trial Court on 28-4-1993, The plaintiff went up in appeal No. 76/122 of 1993 before the learned Additional Commissioner, Jhansi Division, Jhansi on 14-5-1993, impleading the Gaon Sabha, concerned and the State of U.P. which was allowed and the suit of the plaintiff was decreed, vide his order, dated 4-8-1993. Thereafter, on 4-10-2000, the Nagar Palika Parishad filed an application for restoration of the appeal under Section 151 CPC and on 16-1- 2002. It filed another application under Section 151 CPC for recalling the order, dated 4-8-1993, for its impleadment ad decision of the appeal on merits afresh, along with an application under Section 5 of the Limitation Act and affidavit, which was rejected, vide his order, dated 8-2-2002. The application dated 4-10-2000 was also rejected by him vide his order, dated 14-8-2002 and therefore, on 25-2-2003, the Nagar Palika Parishad preferred a second appeal before the Board along with an application under Section 5 Limitation Act and a stay application under Order XLI Rule 5 CPC, against the judgment and decree dated 4-8-1993 and vide order, dated 5-3-2003, notices were ordered to be issued, records to be summoned and status quo to be maintained till further orders. A stay vacation application was filed on behalf of the respondent Nos. 1 and 4 on 12-1-2005 and 5-8-2005 respectively upon which the stay order was vacated, vide order, dated 5-8-2005. On 28-10-2005, objection on behalf of respondent No. 4 to the application under Section 5 Limitation Act, filed alongwith the second appeal, was filed, which is on the record, praying for dismissal of the second appeal, in limine and on 22-11-2005 the Nagar Palika Parishad filed an application for recalling the order, dated 5-8- 2005, vacating the stay order, dated 5-3-2003. I have heard the learned Counsel for the parties on the aforesaid application, dated 22-11-2005, as well as on admission of the second appeal .The bone of contentions of the learned Counsel for the respondent, inter alia, in a nut shell, are that since no affidavit has been filed along with an application under Section 5 of the Limitation Act, this second appeal is liable to dismissed, in limine, because without first considering the question of delay and condoning the same, this Court has no jurisdiction to proceed with it on merits; secondly, that since this second appeal has been preferred deliberately after the expiry of limitation, issue of limitation has to be decided first, as per the settled principle of law; thirdly, that since the Nagar Palika Parishad has no locus standi, as held by the learned Court below, this second appeal is not maintainable in law and therefore the same very richly deserves dismissal, outright, in limine. In support, reliance has been placed on the case laws, reported in 1982 ACJ 74 and 1998 RD 74 as well as the provisions of Order XLI Rule 3-A CPC. The learned Counsel for the appellant, in reply, urged that since once the Court issued notice under Section 5 Limitation Act, the interim order passed by it without considering the reasons for delay being sufficient or not, has illegally been vacated and therefore, the order, dated 5-8-2005 very richly deserves to be recalled.
(3.) I have closely and carefully considered the matter in question and the arguments advanced before me by the learned Counsel for the parties concerned and have also scanned the relevant papers on file. As a matter of facts, this second appeal has been preferred along with an application under Section 5 of the Limitation Act, after the expiry of limitation. The learned Additional Commissioner, vide his order, dated 14-8-2002, has vividly observed that the Nagar Palika Parishad has no locus standi and the delay in filing the first appeal has also not satisfactorily been explained and since in the notification, the old and new numbers of the plots in dispute do not find place, he rejected both the applications for recalling the order, dated 4-8-1993 as well as for its impleadment and restoration application, dated 4-10-2000, preferred by the Nagar Palika Parishad on 8-2-2002. This second appeal has been preferred by it on 25-2-2003 against the judgment and decree, dated 4-8-1993, with a delay of about 9 years and odd. A bare perusal of the application under Section 5 Limitation Act does not reveal any satisfactory explanation for the delay in filing this second appeal. No. affidavit in support of the same has either been filed by the Nagar Palika Parishad. the provisions of Order XLI Rule 3-A CPC is rather very clear on this point which reads as under: “3-A. Application for condonation of delay. - (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application, supported by affidavits, setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.” A bare perusal of the aforesaid provisions clearly reveals that filing of affidavit is mandatory in law if the appeal is presented after the expiry of the period of limitation, which is badly lacking in the instant case. Since no affidavit has been filed, the question of condonation of delay does not arise at all and therefore, I, in the facts and circumstances of the instant case, am of the considered opinion that this second appeal, being not fit for admission, very richly deserves dismissal, outright, in limine.;