Sudhir Agarwal, J. And Neeraj Tiwari, J. - (1.) This is an application filed under section 5 of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") seeking condonation of delay in filing appeal. The appeal filed under section 96 of Code of Civil Procedure is directed against judgment and order dated 18.4.2016 and 28.4.2016 passed by Sri Gulam Mustafa, Civil Judge (Senior Division) -II, Hapur dismissing Original Suit No. 406 of 2013 and has been preferred after expiry of period of limitation with delay of one year and 200 days.
(2.) In the explanation furnished in the affidavit accompanying application filed under section 5 of Act, 1963, it is said that defendants being aggrieved by finding recorded by Court below in respect to Issue-3 filed an appeal under section 96 C.P.C. being First Appeal No. 275 of 2016 before this Court which was dismissed on 21.7.2016 whereafter defendants-respondents preferred Civil Revision (Defective) No. 169 of 2016 which was also dismissed as misconceived by order dated 12.8.2016. Thereafter defendants-respondents filed Special Leave Petition No. 5377-78 of 2017 which is pending before Apex Court.
(3.) The factum that defendants-respondents filed First Appeal or Revision does not give any justification to plaintiff-appellant file appeal after expiry of period of limitation when appellants' suit itself was dismissed. No reason has been given in the entire affidavit as to why appellants could not file appeal within period of limitation or even when defendants-respondents filed appeal on 1.5.2016 which was dismissed, or within a reasonable period thereafter.;