NAGAR PALIKA PARISHAD Vs. DILLA ETC.

JUDGEMENT

(1.) AN application for recalling the order dated 5-8-2005, passed by this Court, vacating the order, dated 5-3- 2003, by which status quo has been ordered to be maintained till further orders, has been filed on behalf of the appellant, Nagar Palika Parishad against which objection on behalf of respondent No. 4, Saurabh Gupta has been filed on 28-10-2005.

(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that after the suit of the plaintiff under Section 229-B of the UPZA and LR Act was dismissed by the learned trial Court on 28-4-1993, The plaintiff went up in appeal No. 76/122 of 1993 before the learned Additional Commissioner, Jhansi Division, Jhansi on 14-5-1993, impleading the Gaon Sabha, concerned and the State of U.P. which was allowed and the suit of the plaintiff was decreed, vide his order, dated 4-8-1993. Thereafter, on 4-10-2000, the Nagar Palika Parishad filed an application for restoration of the appeal under Section 151 CPC and on 16-1- 2002. It filed another application under Section 151 CPC for recalling the order, dated 4-8-1993, for its impleadment ad decision of the appeal on merits afresh, along with an application under Section 5 of the Limitation Act and affidavit, which was rejected, vide his order, dated 8-2-2002. The application dated 4-10-2000 was also rejected by him vide his order, dated 14-8-2002 and therefore, on 25-2-2003, the Nagar Palika Parishad preferred a second appeal before the Board along with an application under Section 5 Limitation Act and a stay application under Order XLI Rule 5 CPC, against the judgment and decree dated 4-8-1993 and vide order, dated 5-3-2003, notices were ordered to be issued, records to be summoned and status quo to be maintained till further orders. A stay vacation application was filed on behalf of the respondent Nos. 1 and 4 on 12-1-2005 and 5-8-2005 respectively upon which the stay order was vacated, vide order, dated 5-8-2005. On 28-10-2005, objection on behalf of respondent No. 4 to the application under Section 5 Limitation Act, filed alongwith the second appeal, was filed, which is on the record, praying for dismissal of the second appeal, in limine and on 22-11-2005 the Nagar Palika Parishad filed an application for recalling the order, dated 5-8- 2005, vacating the stay order, dated 5-3-2003.

(3.) I have closely and carefully considered the matter in question and the arguments advanced before me by the learned Counsel for the parties concerned and have also scanned the relevant papers on file. As a matter of facts, this second appeal has been preferred along with an application under Section 5 of the Limitation Act, after the expiry of limitation. The learned Additional Commissioner, vide his order, dated 14-8-2002, has vividly observed that the Nagar Palika Parishad has no locus standi and the delay in filing the first appeal has also not satisfactorily been explained and since in the notification, the old and new numbers of the plots in dispute do not find place, he rejected both the applications for recalling the order, dated 4-8-1993 as well as for its impleadment and restoration application, dated 4-10-2000, preferred by the Nagar Palika Parishad on 8-2-2002. This second appeal has been preferred by it on 25-2-2003 against the judgment and decree, dated 4-8-1993, with a delay of about 9 years and odd. A bare perusal of the application under Section 5 Limitation Act does not reveal any satisfactory explanation for the delay in filing this second appeal. No. affidavit in support of the same has either been filed by the Nagar Palika Parishad. the provisions of Order XLI Rule 3-A CPC is rather very clear on this point which reads as under: