D.K.Seth, J. - (1.) - Mr. Bhattacharyya, the learned counsel appearing on behalf of the respondent, vehemently opposes the application for condonation of delay. There is about 26 days' delay in preferring the appeal. Mr. Bhattacharyya points out that the application under section 5 of the Limitation Act was filed long after filing of the appeal. In view of the provisions contained in Order 41 Rule 3A of the Code of Civil Procedure (CPC), the petitioner is supposed to explain the delay till the date of filing the application under section 5 of the Limitation Act. Inasmuch as, unless the Memorandum of Appeal is accompanied by an application under section 5 of the Limitation Act, there is no Memorandum of Appeal in the eye of law. Therefore, it would be deemed to have been presented only when it is accompanied by an application under section 5 of the Limitation Act. This period needs to be explained. Without any explanation, the delay cannot be condoned.
(2.) The second point taken by Mr. Bhattacharyya is that delay has not been properly explained. The allegation of sufferance from Viral Hepatitis is unfounded and has been created for the purpose of seeking condonation of delay. He has also pointed out to the conduct of the appellant. Inasmuch as the application for certified copy was made at a very late stage. That apart, instruction for preferring appeal was issued after one month. Since the matter was decided on contest, there is no question of absence of knowledge on the part of the appellant, as has been sought to be contended in the application under section 5 of the Limitation Act. The statements made, on the face of it, show that those are not correct which have been affirmed as true to knowledge. Therefore, the petitioner cannot take advantage of such statement, which he himself knows to be incorrect. The application, therefore, should be dismissed.
(3.) The learned counsel for the appellant, on the other hand, contended that the delay has sufficiently been explained. Instruction was rightly issued. Certified copy took a little time. The person responsible for preferring the appeal was attacked with Viral Hepatitis, which according to him, is supported by documents, which ought to have been annexed with the application but by mistake, those could not be annexed. However, copies thereof have been furnished to Mr. Bhattacharyya and Mr. Bhattacharyya takes no objection to that. He also prays to file these annexures and get them stitched with the application itself.;