SUKH SAGAR Vs. HEM RAJ

JUDGEMENT

(1.) THE present appeal has been filed at the instance of the unsuccessful plaintiffs whereby their appeal before the Additional District Judge, Hoshiarpur has been dismissed as time barred. The admitted facts of the case are as under : -

(2.) MR . G.S. Jaswal, learned counsel for the appellants has argued that through Order 41, Rule 3 -A of the Code of Civil Procedure did require that an application for condonation of delay was to be accompanied by an affidavit, yet such an affidavit could be dispensed with if the facts of the case so warranted. He has argued that as the facts narrated above were on the record either judicial or administrative there was no infeasible requirement that an affidavit be filed. It was also argued that there was in fact no delay in refiling the appeal as January 16, 1977, was a Sunday and the appeal returned on January 15, 1977 by the Senior Sub Judge was filed without any further delay and, therefore, the finding recorded by the first appellate Court that there was undue delay was without any basis. He has also urged that assuming for a moment that the appeal had been filed by mistake in the Court of Senior Sub Judge but that was at the instance of the appellant's counsel and that for the mistake of the counsel the party should not suffer. In support of this plea, he has urged that even the senior Sub Judge, after scrutiny, had admitted the appeal for hearing on merits, on October 4, 1974.

(3.) It is also true that it was the requirement of Order 41, Rule 3 -A of the Code of Civil Procedure that an application for condonation of delay was to be accompanied by an affidavit. I am, however, of the view that where the facts which were required to be sworn in the affidavit in support of the application for condonation of delay, could be accurately ascertained from the Court records, either judicial or administrative, it would not be incumbent that an affidavit in support of the application for condonation of delay must also be filed. Such requirement would be dependent on the facts of each case.