- (1.) HEARD the counsel for the appellant.
(2.) THIS time barred appeal was filed on 16.6.2006. The appeal was barred by 55 days. After memo of appeal was filed, defect was pointed out including limitation. thereafter the case was listed on different dates i.e. on 18.7.2006, 30.4.2007, 20.11.2007, 4.2.2008 and 31.3.2008 for removing all the defects including filing of limitation petition. When defects were not removed, finally the appeal was listed before the Bench on 20.6.2008. On that day the Division Bench passed the following order: "20.6.2008: - Time till 23.6.2008, as payed for, is allowed for filing limitation petition. It is made clear that the period of limitation for the purpose of calculating the delay in filing this appeal shall be taken into account from the date of filing of the appeal till the date of filing of limitation petition." The limitation petition was ultimately filed on 23.6.2008. In the light of the aforesaid order, the Stamp Reporter gave further report that the appeal is now barred by 793 days. Despite the aforesaid order dated 20.6.2008, the delay of 793 days in filing the appeal remained unexplained. There is no whisper about any reason for non -filing of the limitation petition from the date of filing of memo of appeal till the date of filing of the limitation petition. Rule 3A of Order XLI of Code of Civil Procedure (inserted by C.P.C. Amendment Act, 1976) is very specific on this point which reads as under: "3A. Application for condo -nation of delay. -(1) When an appeal is presented after the expiry of the period of limitation specified there -for, 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." .
(3.) FROM bare perusal of the aforesaid provision, it is manifestly clear that filing of limitation petition along -with the memo of appeal setting forth the facts on which the appellant relies to satisfy the court that he had sufficient case for not preferring the appeal within such period, has been made mandatory.;