- (1.) This defective first appeal has been filed by the State of U.P. challenging the judgment and decree dated 28.03.2009/09.04.2009 passed by the Additional District Judge, Court No. 2, Bulandshahar in L.A.R. No. 387 of 1991.The Stamp Reporter has reported delay and laches of 7 years and 58 days in filing the appeal. A delay condonation application under Section 5 of the Limitation Act supported by the affidavit has also been moved.
(2.) The case set up by the appellant in the affidavit filed in support of the delay condonation application states as under : That in reference no. 387 of 1991 the Additional District Judge, Court no. 2, Bulandshahar has finally allowed the reference vide order dated 28.03.2009. It is not clear from the available records of the department that as to why the then Jiledar Court case, Madhya Ganga Canal Construction Division-10, Bulandshahar Mr. Banni Singh, has not taken appropriate steps for filing the appeals. During the execution proceedings having no. 13 of 2009 when it transpired that no appeal has been preferred by the Jiledar, as such, an explanation was sought from him on 29.10.2015. For kind perusal of this Hon'ble Court a copy of show cause dated 29.10.2015 issued to the then Jiledar is being filed herewith and marked as Annexure No. 1 to this affidavit.
(3.) In rest of the paragraphs of the affidavit, the appellant has tried to explain the delay after 29.10.2015. From a perusal of the pleadings, we do not find any justifiable and acceptable explanation for the period 2009 to 29.10.2015 when the alleged notice to the then Jiledar Court case, Madhya Ganga Canal Construction Division-10, Bulandshahar has been issued requiring him to show cause why the appeal was not preferred within time and he was required to submit explanation within a week. Even though almost one year has passed but there is not even a whisper with respect to any reply submitted by him nor there is any averment in respect of any proceedings having been initiated against him for alleged lapses. The appellant has not even cared to disclose the present status of the then Jiledar as to whether he is still in employment or has retired and in what manner the notice was served upon him. In the absence of these allegations, it is hard to place reliance on the veracity of the said notice and it appears that after discovering the fact that no appeal has been preferred, a simple notice was issued mechanically for the purpose of initiating the process of filing the appeal and explaining the delay.;