- (1.) This is an application on behalf of the respondents that the appeal may be dismissed as it was time-barred by 50 days and the same could not be admitted without first dealing with the application for condonation of delay under Order 41, Rule 3-A, Civil Procedure Code.
(2.) I find merit in this application. Rule 3-A of Order 41, Civil Procedure Code, reads as follows :- "3-A(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be. (3) ... ... ... ... (4) ... ... ... ..." From the reading of this rule it is plain that when an appeal is presented after the expiry of the period of limitation, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within the time prescribed and if the Court does not reject the same, it will issue notice to the other side and then decide the matter finally whether sufficient cause is shown or not and the appeal will be entertained if sufficient cause is shown. The aforesaid provision is mandatory and not directory. The appeal was decided by the first appellate Court on 19th September, 1981. Application for supply of the lower appellate Court's judgment was made on 1st October, 1981 and the copy was supplied on 29th October, 1981. The appeal in the High Court was filed on 6th March, 1982. After excluding the time spent in getting the certified copy of the lower appellate Court's judgment, the appeal is barred by time by 50 days. The appeal was to be filed within 90 days but it was filed after 140 days. In the application for condonation, the only reason given is that the certified copies were misplaced. This is not sufficient ground for condoning the delay. Reference may be made to a Division Bench authority of this Court Bhagwan Singh v. Smt. Jagdish Kaur, 1977 RentLR 651, wherein their Lordships while interpreting the provisions of Rule 3-A(2) of Order 41, Civil Procedure Code held that this rule is mandatory and not directory. In para 6 following observations were made by their Lordships :- "After going through the averments made in C.M. No. 1645-C-II of 1977, filed under Section 5 of the Limitation Act, we find that no plausible case has been made out for condonation of delay. Absolutely vague allegations have been made and on the basis of such allegations we find ourselves unable to condone the delay. Accordingly, we find that no honest bona-fide mistake was committed by the appellant in presenting the appeal beyond the period of limitation. In this view of the matter we dismiss the application for condonation of delay. Consequently, the main appeal (F.A.O. No. 44-M of 1977) is also dismissed." In the aforesaid case, the admitting order was recalled and the appeal was dismissed.
(3.) Accordingly this application is allowed and the order dated 26th April, 1982, is re-called and the application for condonation of delay in filing the appeal is dismissed. In the result the appeal also stands dismissed. No costs.;