SHOBA VISWANATHAN Vs. STATE

JUDGEMENT

(1.) THIS petition for condonation of delay of 135 days in filing the appeal is posted before us on our direction given yesterday when c. M. P. No. 12907 of 1995 for fixing a date for hearing the O. S. Appeal was posted before us. We were informed that this petition was pending. We find now that in the petition for condonation of delay, while ordering notice, the division Bench directed that petition to be posted along with the appeal for hearing. Thus, the registry numbered the appeal. When the petition was posted again after some time, the Bench passed the following order:- 'wrongly posted. Post long with the appeal.'

(2.) OBVIOUSLY, the Bench was under the impression that a petition to condone the delay could be disposed of long with the main appeal. In our opinion, the said view is erroneous. It is settled law that unless the delay in filing the appeal is condoned, the same cannot be taken on file. Section 3 of the Limitation Act provides that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The language of the section is mandatory. Hence, the Court has a duty to consider whether the delay in preferring the appeal can be condoned under Section 5 of the Limitation Act. Only if the delay is condoned, the appeal could be entertained by the Court.

(3.) THE delay will be condoned on condition that the petitioner pays a sum of Rs. 5000/- (Rupees five thousand only) to the respondent's counsel appearing here on or before 15. 11. 1995, failing which this petition will be dismissed.