PRINCIPAL KENDRIYA VIDYALAYA Vs. V RAJAGOPALAN

JUDGEMENT

(1.) This is an application under S. 5 of the Limitation Act 1963 to condone a delay of 390 days in filing a writ appeal against the order in W. P. No. 4080 of 1977. The petitioners herein were respondents 1 and 2 in the writ petition and Padmanabhan J. allowed the writ petition on 15-7-1980. The petitioners herein as well as the third respondent in the writ petition filed on 1-10-1980 an application in W.M.P. 7874 of 1980 seeking a review of the order passed in W.P. 4080 of 1977. The review application so filed by the petitioners and another was dismissed on 7-8-1981 Thereafter, the petitioners alone preferred an appeal against the order in W.P. 4080 of 1977 on 11-9-1981, admittedly after 390 days after the expiry of the time allowed for preferring such an appeal.

(2.) In paragraph 5 of the affidavit filed in support of this petition, it has been stated that the petitioners were advised to file a review petition in W.M.P. No. 7874 of 1980 and that petition was dismissed on 7-8-1981, and thereafter, the petitioners were advised to get a copy of the order in W.M.P. 7874 of 1980 which was obtained on 7-8-1981 and the appeal had been filed subsequently after securing legal advice and, therefore, the delay that had been occasioned is bona fide and should be condoned. In opposing this application, the respondent has disputed the stand taken by the petitioners and has stated that the petitioners have not explained every day's delay and that in the absence of such explanation, no ground has been made out for condoning the inordinate delay of over one year. It was also the further plea of the respondent that the filing of a review petition in is no bar to the filing of a writ appeal in time and that, in any event, the petitioners cannot take advantage of the pendency of the review proceedings as sufficient cause for purposes of S. 5 of the Limitation Act, In the reply affidavit filed by the petitioners' it is stated in paragraph 2 that the result of the writ petition disposed of on 5-7-1980, was communicated to the first petitioner, and on 30-7-1980 a copy of the order in the writ petition was also received by the second petitioner and thereafter, the order was sent along with the case file to the Vigilance Commissioner on 4-8-1980 by the petitioners and the first petitioner also reminded the Vigilance Commissioner, New Delhi by telegrams dated 16-8-1980. In paragraph 3 of the reply affidavit it is stated that the Vigilance Commissioner, New Delhi had instructed the filing of an appeal by his letter dated 22-8-1980, but later, on the advice of the counsel, a review petition in W.M.P. 7874 of 1980 was filed on 27-9-1980. In paragraph 4 of the reply affidavit the petitioners further stated that on the dismissal of the review W. M. P. No. 7874 of 1980, on 7-91981, the first petitioner was informed of the same and the first petitioner, in turn, informed the Vigilance Commissioner, New Delhi, that the copy of the review order was received by the first petitioner on 19-8-1981, and a copy of the same was also sent to the Vigilance commissioner, New Delhi. Thereafter, the petitioners claimed that the grounds were prepared and sent to the Law Ministry, Madras, for approval on 29-8-1981, and that the appeal was later filed on 10-9-1981.

(3.) A reference to the original records discloses that the statement made in the reply affidavit that the review petition was filed on 27-9-1980 arid that the writ appeal was filed on 10-9-1981 is erroneous, but that the review petition in W.M.P. 7874 of 1980 and the writ appeal had been actually filed on 1-10-1980 and 11-9-1981 respectively.