DILIP GUPTA, J. - (1.) The Kanpur Development Authority, Kanpur (hereinafter referred to as the 'Development Authority') has filed this application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as the 'Act') for condoning the delay of two years and 305 days in filing this second appeal.
(2.) IN support of the application, an affidavit has been sworn by Sri S.K. Jaiswal Joint Secretary (Legal) in the Development Authority and the reasons given for condoning the delay in filing the second appeal have been mentioned in paragraph 3 of the affidavit. It has been stated that First Appeal No. 286 of 1998 out of which the present second appeal arises was pending in the Court of District Judge, Kanpur Nagar. The officer on special duty by the office note dated 3.5.2001, directed the suit clerk of the Development Authority to give the status of the aforesaid first appeal and by the office note dated 5.5.2001 it was brought to the knowledge of the Officer on Special Duty that the suit clerk had informed the Development Authority, on the basis of the information received from the clerk Kedar Ji of the panel lawyer of the Development Authority Sri Vishal Kumar, that the said first appeal was pending adjudication. It is in such circumstances that the Joint Secretary (Legal) of the Development Authority was under the bona fide belief that the aforesaid first appeal was still pending in the Court of District Judge, Kanpur Nagar even though the said first appeal had been dismissed on 28.4.2001. It has then been stated that in the month of November, 2003 for the first time the Joint Secretary (Legal) of the Development authority got knowledge of the dismissal of the first appeal and so he directed the subordinate officials for filing the second appeal before this Court but due to departmental formalities the necessary expenses to be incurred for getting the certified copies were made available to the court clerk only in the month of January, 2004. It is only thereafter that the court clerk applied for certified copies of the judgments and decrees and other papers which were made available to him in the first week of February, 2004. The pairokar of the Development Authority then contacted the learned Counsel at the Allahabad High Court for filing the present second appeal and handed over the certified copies of the relevant papers. The learned Counsel sent a letter to the Development Authority in the month of March, 2004 for sending some important papers so that the second appeal could be prepared and filed and on 23.5.2004 the pairokar handed over the papers to the learned Counsel. The second appeal was filed on 28.5.2004. It is in such circumstances that the delay of 2 years and 305 days is sought to be explained by the Development Authority. It also needs to be mentioned here that documents in support of the averments made in the affidavit have not been filed though in paragraph 3 (ii) it has been stated that the original note referred to in the paragraph shall be produced at the time of arguments, if required. A counter -affidavit has been filed to the affidavit filed in support of the delay condonation application. The averments made in the affidavit filed in support of the delay condonation application have been denied. It has been stated that Sri Vishal Kumar was not even appearing as a counsel but the inquiry was sought to be made from his clerk. In fact, Sri Suman Nigam advocate was appearing as the counsel for the Development Authority in the first appeal and after the dismissal of the first appeal on 28.4.2001 he had even filed an application under his signatures for obtaining certified copies of the judgments and decrees of both the Courts below through register No. 112 on 14.8.2001. The certified copies of the judgments and decrees were made available to Sri Nigam on 4.9.2001 as is evident from the register. In support of this averment, a copy of the certificate issued by the counsel who inspected the file on 13.7.2007 has been annexed. It has, therefore, been stated that enquiry was made on 3.5.2001 from the clerk of a counsel who was not even appearing in the first appeal, apart from the fact that the Development Authority in its affidavit had not even mentioned how it was keeping track of the case prior to 3.5.2001 as the first appeal itself had been dismissed on 28.4.2001. It has also been stated that the alleged office notes have not been annexed and even if it assumed that the Joint Secretary (Legal) of the Development Authority got to know about the dismissal of the first appeal only in November, 2003 then too the second appeal was filed after a lapse of seven months for which no proper explanation has been given.
(3.) A rejoinder -affidavit sworn by Sri Lala Ram, Tehsildar in the Development Authority has been filed to the aforesaid counter -affidavit. It has been stated that Sri Vishal Kumar was the son of Sri Suman Nigam and both the persons were looking after the cases on behalf of the Development Authority and though it is correct that the certified copies were applied for and procured by the office of Sri Suman Nigam in the month of September, 2001 but his clerk who was authorized to communicate to the Development Authority did not communicate the same was the certified copies were misplaced and 'till date the office of Mr. Suman Nigam could not communicate with regard to dismissal of first appeal'. It has also been stated that when the Joint Secretary (Legal) of the Development Authority came to know about the dismissal of the first appeal in November, 2003, he immediately requested the panel lawyer Sri K. K. Bajpayee for applying for the certified copies of the judgments and decrees for filing the second appeal which were made available to the Development Authority in first week of February, 2004. The subsequent delay is sought to be explained by stating that during the preparation of the case learned Counsel of the Development Authority in the High Court asked for certain documents as a result of which some more time was spent in collecting the same and then the second appeal was filed. It has also been stated that 'now it is settled law that the delay condonation application should normally be allowed if there is no deliberate inaction on the part of the person who is seeking delay condonation'.;