- (1.) Challenge in the present petition filed by the State is to the order dated 28.3.2005, whereby the application filed by it seeking condonation of delay of 10 days in filing the appeal before the court below against the judgment and decree dated 7.1.2002, passed by Civil Judge (Junior Division), Gurgaon, was dismissed.
(2.) Learned counsel for the State submitted that the respondents No. 1 to 5-plaintiffs filed a suit for declaration and permanent injunction claiming themselves to be owners in possession of the suit property. The same having been decreed against the State, appeal was preferred before the court below. On account of time taken in the procedure, the same was delayed by 10 days. Accordingly, along with the appeal, an application seeking condonation thereof was filed. The learned court below dismissed the application and consequently the appeal as well. The delay in filing the appeal was not inordinate, rather, in the functioning of the State where the attitude is impersonal and lot of procedures are required to be followed. The delay in filing the appeal deserves to be condoned.
(3.) On the other hand, learned counsel for respondents No. 1 to 8 submitted that in the application filed by the State before the court below, the delay had not been explained. On failure, the learned court below had rightly dismissed the application. The delay of even substantial period can be condoned if a case is made out. Sometimes, even delay of one day may be enough to non-suit a party. He further submitted that the present petition should not be entertained as it could be filed only under Section 115 CPC. This course has been adopted by the State only to cover up the limitation in filing the petition before this court.;