RAVINDRA JAIN Vs. NATRAJ ALBUMS INDUSTRIES PVT LIMITED

JUDGEMENT

(1.) Whether an application under Section 5 of the Limitation Act seeking condonation of delay in filing an appeal must accompany the memo of appeal? If the application is not so filed does it cease to be maintainable merely because it was filed a few days after the filing of the appeal? These are the questions of law of day to day recurrence, which arise for decision in this appeal.

(2.) The order of injunction which is under appeal was passed on 24.5.96. On 25.5.96 an application for certified copy of the order was made. Copy was ready on 28.5.96. The last day of filing the appeal was 27.6.1996. The appeal was filed on 2nd July, 1996. It was not accompanied by an application seeking condonation of delay in filing the appeal. The registry raised a few objections including one of the appeal being barred by time and brought it to the notice of the appellant's counsel. The appeal was returned to the appellant's counsel for removing the defects and refiling the same within one week. The appeal, accompanied by an application under Section 5 of the Limitation Act, supported by an affidavit, was filed on 6.7.96. An additional affidavit in support of the application has been filed on 26.7.96. According to the appellant, the appeal is belated by one day only; it could have been filed on 1.7.96, the day on which the High Court opened while it has been actually filed on 2.7.96. It is prayed that the delay deserves to be condoned.

(3.) The prayer for condonation of delay has been opposed tooth and nail by the plaintiff-respondent, not only on the ground that no sufficient cause for condoning the delay is made out, but also on the ground that the application was not maintainable and was liable to be dismissed in limine.