SAHIDULLAH MUNSHI,J. - (1.) In Re: C.A.N. 9216 of 2012 This is an application under Section 5 of the Limitation Act filed by the appellants seeking condonation of delay of 1572 days in filing the second appeal. At the instance of the petitioners, the application for leave to file appeal has already been allowed subject to payment of costs of Rs. 10,000/-.
(2.) In explaining the delay the petitioners have stated in this application that the Appellate Court below passed an ex parte order on 11th May, 2007 and the petitioners purchased the suit land on 23rd September, 2009. However, it has been stated that in the proceeding under Section 144(2) of the Code of Civil Procedure the petitioners, for the first time, came to learn about the ex parte decision in the learned Lower Appellate Court which arose from Title Suit No. 25 of 1990. After receiving information about the appeal before the learned Court below he started making search in the office of the A.D.M. L.R. and other concerned departments. The vendors of the petitioners who are also made party in this appeal being respondent nos. 9 and 10 were requested to file appeal challenging the said ex parte decision passed by the learned First Appellate Court. However, the respondent no. 9 assured the petitioners that they will file an appeal challenging the decision of the learned First Appellate Court and requested the petitioners to wait for return of the respondent no. 10 who is also one of the vendors and who lives abroad. Ultimately, the petitioners waited for return of respondent no. 10 till 2nd week of November, 2011 and when it was found that the said respondent no. 10 did not, ultimately, come back, the petitioners decided to challenge the ex parte decision passed by the learned First Appellate Court on 11th May, 2007 and, accordingly, an appeal has been filed before this Court on 20th November, 2011 together with an application for leave to appeal.
(3.) Since I have already allowed the leave to appeal, it is assumed that, prima facie, I have found that there is some merit in the appeal and, accordingly, leave was granted. Since leave was granted to file the appeal, in my view, delay in filing the appeal should stand in the way of the said appeal. Accordingly, the explanation that has been given in the Section 5 application should be considered leniently, but because of some laches on the part of the petitioners for unnecessarily delaying the litigation for long, this Court intends to impose costs as a condition for allowing the Section 5 application.;