KANPUR DEVELOPMENT AUTHORITY Vs. ARJUN DEV KEHAR

JUDGEMENT

(1.) The Kanpur Development Authority, Kanpur (hereinafter referred to as the 'Development Authority') has filed this application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as the 'Act') for condoning the delay of two years and 305 days in filing this second appeal.

(2.) IN support of the application, an affidavit has been sworn by Sri S.K. Jaiswal Joint Secretary (Legal) in the Development Authority and the reasons given for condoning the delay in filing the second appeal have been mentioned in paragraph 3 of the affidavit. It has been stated that First Appeal No. 286 of 1998 out of which the present second appeal arises was pending in the Court of District Judge, Kanpur Nagar. The officer on special duty by the office note dated 3.5.2001, directed the suit clerk of the Development Authority to give the status of the aforesaid first appeal and by the office note dated 5.5.2001 it was brought to the knowledge of the Officer on Special Duty that the suit clerk had informed the Development Authority, on the basis of the information received from the clerk Kedar Ji of the panel lawyer of the Development Authority Sri Vishal Kumar, that the said first appeal was pending adjudication. It is in such circumstances that the Joint Secretary (Legal) of the Development Authority was under the bona fide belief that the aforesaid first appeal was still pending in the Court of District Judge, Kanpur Nagar even though the said first appeal had been dismissed on 28.4.2001. It has then been stated that in the month of November, 2003 for the first time the Joint Secretary (Legal) of the Development authority got knowledge of the dismissal of the first appeal and so he directed the subordinate officials for filing the second appeal before this Court but due to departmental formalities the necessary expenses to be incurred for getting the certified copies were made available to the court clerk only in the month of January, 2004. It is only thereafter that the court clerk applied for certified copies of the judgments and decrees and other papers which were made available to him in the first week of February, 2004. The pairokar of the Development Authority then contacted the learned Counsel at the Allahabad High Court for filing the present second appeal and handed over the certified copies of the relevant papers. The learned Counsel sent a letter to the Development Authority in the month of March, 2004 for sending some important papers so that the second appeal could be prepared and filed and on 23.5.2004 the pairokar handed over the papers to the learned Counsel. The second appeal was filed on 28.5.2004. It is in such circumstances that the delay of 2 years and 305 days is sought to be explained by the Development Authority. It also needs to be mentioned here that documents in support of the averments made in the affidavit have not been filed though in paragraph 3 (ii) it has been stated that the original note referred to in the paragraph shall be produced at the time of arguments, if required.

(3.) A rejoinder -affidavit sworn by Sri Lala Ram, Tehsildar in the Development Authority has been filed to the aforesaid counter -affidavit. It has been stated that Sri Vishal Kumar was the son of Sri Suman Nigam and both the persons were looking after the cases on behalf of the Development Authority and though it is correct that the certified copies were applied for and procured by the office of Sri Suman Nigam in the month of September, 2001 but his clerk who was authorized to communicate to the Development Authority did not communicate the same was the certified copies were misplaced and 'till date the office of Mr. Suman Nigam could not communicate with regard to dismissal of first appeal'. It has also been stated that when the Joint Secretary (Legal) of the Development Authority came to know about the dismissal of the first appeal in November, 2003, he immediately requested the panel lawyer Sri K. K. Bajpayee for applying for the certified copies of the judgments and decrees for filing the second appeal which were made available to the Development Authority in first week of February, 2004. The subsequent delay is sought to be explained by stating that during the preparation of the case learned Counsel of the Development Authority in the High Court asked for certain documents as a result of which some more time was spent in collecting the same and then the second appeal was filed. It has also been stated that 'now it is settled law that the delay condonation application should normally be allowed if there is no deliberate inaction on the part of the person who is seeking delay condonation'.