STATE OF HARYANA Vs. K.K. SHARMA

JUDGEMENT

(1.) THE defendants are in revision petition aggrieved against the order passed by the learned first Appellate Court on 20.7.2004, whereby delay of six months in filing the appeal was not condoned. The plaintiff-respondents have filed a suit for declaration with all consequential benefits, claiming revised pay scale from 1.12.1992 on the basis of instructions issued by the State Government for granting higher pay scale on completion of regular service of specific period. The said suit was decreed on 30.7.2003. However, the appeal against the said judgment and decree was filed on 25.2.2004 i.e. after a delay of six months in filing the appeal. The appeal was accompanied by an application under Section 5 of the Limitation Act. The learned first Appellate Court declined such application on the ground that no cause for condonation of delay is made out as the certified copy itself has been applied after the expiry of 30 days and that the appeal has been filed after the expiry of a period of six months and the reasons to seek condonation are very casual.

(2.) AFTER hearing learned counsel for the parties, I am of the opinion that though there is delay in filing the appeal, but the delay is not such which would raise a presumption of casual conduct of the defendants in filing such appeal. It has been held by the Hon'ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy, 1999(2) RCR(Civil) 578 : 1999(1) Civil Court Cases 12 (SC), that in considering the application for condonation of delay, the Court has to see whether any undue advantage is being sought to be taken by the litigant. In the present case, delay in filing the appeal cannot be said to be taking of any undue advantage. Therefore, the order passed by the learned first Appellate Court is not sustainable in law.

(3.) THE parties through their counsel are directed to appear before the learned first Appellate Court on 10.2.2006 for further proceedings in accordance with law. It shall be open to the learned District Judge to entrust the appeal to any other Court of competent jurisdiction. Appeal allowed.