BRIJ MOHAN Vs. SUNITA

JUDGEMENT

(1.) By way of this application, appellant has sought condonation of delay of 380 days in refilling the appeal. It is averred in the application that appellant had filed the appeal in February 2008 against the judgment and decree of the Trial Court dated 29th November, 2007. Since Registry raised certain objections and sought clarifications of the same, appeal was taken back from the Registry. Appellant pursued refiling of the appeal with his counsel but the appeal could not be filed in time. In December 2008 i.e. after about more than nine months, appellant had engaged another counsel to get the appeal refiled. However, appeal was refiled only on 13th March, 2009 as the new counsel took some time to remove the objections in refiling the appeal. This resulted in delay of 380 days in refiling the appeal.

(2.) Order XLI Rule 3A CPC enables an appellant to file his appeal after the expiry of period of limitation specified therefor, to be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies on to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. The Court is within its powers to reject the application without the issue of a notice to the respondent, if it finds no reason to condone the delay prima facie on the averments contained in the application.

(3.) Appellant has not stated anything indicating sufficient cause for not refiling the appeal within the prescribed period of limitation i.e. not exceeding 7 days at a time and 30 days in the aggregate to be fixed by Deputy Registrar, Assistant Registrar, Incharge of the Filing Counter. Rather application is vague and is devoid of any material particulars. Even the affidavit enclosed with the application is nothing but only a supporting affidavit containing no reason for delay in refiling the appeal.