Narendra Kumar Jain, J. - (1.) HEARD learned counsel for the Appellant on the application under Section 5 of the Limitation Act for condonation of delay of 137 days in filing second appeal as well as for admission of second appeal on merits.
(2.) THE Appellant has explained the delay in Para No. 1 and 2 of the application under Section 5 of the Limitation Act, which are reproduced as under: 1 - That the Appellant has filed this second appeal before this Hon'ble Court wherein he is very much hopeful to get success. The judgment and decree dated 14.11.2008 passed by ADJNo. 4, Kota where upon the certified copy has been received by the Appellant on 22.11.2008 and thereafter the sanction for filing the appeal has been obtained from the competent authorities wherein in official process, the time has been consumed. The delay is not willful and deliberate one but it was due to process of proceedings which deserves to be condoned by this Hon'ble Court. 2 - That the delay is not deliberate or willful but beyond the control of the Appellant and Hon'ble Supreme Court has held in catena of judgment that on technical grounds, the case of the litigant may not be thrown out and the court should take pragmatic approach of providing substantial justice, therefore, delay is not come in the way of the Appellant as the Appellant is having a prima facie case in his favour. The above explanation furnished by learned counsel for the Appellant for condonation of delay of 137 days in filing the appeal cannot be said to be satisfactory. The above paras make it clear that a copy of judgment dated 14.11.2008 was received by the Appellant on 22.11.2008 and thereafter only a general explanation has been given whereas the Appellant was required to furnish day to day explanation, but he has not even furnished month to month explanation. In these circumstances, the explanation furnished by the Appellant cannot be said to be satisfactory, so as to condone the delay in filing second appeal. Application under Section 5 of the Limitation Act is liable to be dismissed.
(3.) APART from above, I also examined the matter on merits. The Plaintiff/Respondent filed a suit for declaration and permanent injunction to declare that her date of birth is 05.08.1951 and she should be directed to be retired on completion of 60 years of age from this date. It was pleaded that the Plaintiff was appointed by the Defendant vide order dated 17.07.1980, wherein name of the Plaintiff was mentioned at serial No. 28 and in the column of Date of Birth, her date of birth was mentioned as 05.08.1951. The appointment order was issued by the Defendant and it was a public document, therefore, the same could not have been changed, but subsequently, for the reasons best known to the Defendant, Plaintiff's date of birth was changed from 05.08.1951 to 04.08.1940 and, accordingly, the Defendant had passed an order dated 22.01.2000, retiring the Plaintiff, which is per -se illegal and the said order is liable to be quashed.;