MUKESH KHURANA Vs. PARVATI DEVI

JUDGEMENT

(1.) THERE is delay of 333 days in re-filling the appeal. The prayer made in this application has been vehemently opposed by learned counsel for respondents. Learned counsel for the respondents has placed reliance upon 162 (2009) DLT 542 (DB) Asha Sharma and Ors Vs. Sanimiya Vanijiya P. Ltd. and Ors., 38 (1989) DLT 10 S.V. Khadekar Vs. Shri Ram Scientific Industries Research Foundation, 120 (2005) DLT 429 (DB) Commissioner of Central Excise, Delhi-II Vs. Bluemax Sport Wear as also another judgment of this Court reported in 2010 V AD (Delhi) 677 Brij Mohan Vs. Sunita to substantiate his submission that such an unexplainable delay cannot be condoned as a matter of right; it is submitted that the application is bereft of all material particulars and in these circumstances, no ground is made out to condone the delay in filing of the appeal.

(2.) ADMITTEDLY there was no delay in filing of the appeal; appeal was filed in time. Delay had occurred in re-filing of the appeal. In para 2 of the application it has been stated that the appeal had taken back for removing and curing the objections and defects raised by the Registry; the said appeal paper book had got inadvertently tagged with the case file of another case titled ,,M/s BNC Securities Vs. Sh. Rakesh Gupta which was found on 30.05.2008; thereafter the present appeal was filed on 29.07.2008. Along with this application, the affidavit of the counsel Mr. Bakhshi Uday Dip Singh has also been annexed who has reiterated these submissions on oath stating therein that the appeal paper book had got mixed up with the other file which was found on 30.05.2008.

(3.) THIS second appeal has impugned the judgment and decree dated 17.03.2007 which had endorsed the findings of the trial Judge dated 12.04.2005 whereby the suit filed by the plaintiff Mukesh Khurana seeking specific performance of the agreement dated 10.07.1990 had been dismissed.