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Hari Prasad v. Addl.Commissioner,(Judicial) Gorakhpur Divi. & Others - WRIT - C No. 5596 of 1999  RD-AH 10919 (2 July 2007)
Civil Misc. Writ Petition No.5412 of 1999
Bhupati Vs. Additional Commissioner (Judicial) Gorakhpur division, Gorakhpur and others
Civil Misc. Writ Petition No.5596 of 1999
Har Prasad Vs. Additional Commissioner (Judicial), Gorakhpur division, Gorakhpur and others
Civil Misc. Writ Petition No.5599 of 1999
Sripati Das Vs. Additional Commissioner (Judicial) Gorakhpur division, Gorakhpur and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
Against order dated 31.3.1993 passed by prescribed authority State has filed three appeals on 31.10.1998 i.e after five years and seven months. The number of appeals are 1M, 2M, and 3M of 1998. In para 11 of the memorandum of each appeal cause for delay in filing appeal was given. The concluding sentence of the said para which is last para of memorandum of appeal is to the effect that after granting benefit of section 5 of Limitation Act the order of the prescribed authority be set-aside.
The grievance of the learned counsel for the petitioner is that neither any formal application for condonation of delay nor any affidavit to that effect was filed which was necessary. Learned counsel has further argued that the appellate authority/ learned Additional Commissioner (Judicial) Gorakhpur division Gorakhpur was insisting to decide the appeal on merit.
Appeal is to be filed within thirty days as provided under section 13 of U.P. Imposition of Ceiling on Land Holdings Act 1960. Under section 38 of the said Act, it is provided that while hearing and deciding an appeal under the said Act appellate court shall have all the powers of Civil Court and follow the procedure for hearing and disposal of the appeals. Under section 42 of ceiling Act, section 5 Limitation Act has been made applicable to the appeals.
Learned counsel for the petitioner has argued that as required by Order 41 Rule 3 CPC a separate application for condonation of delay supported by affidavit ought to have been filed alongwith the appeal.
In my opinion, filing separate application for Condonation of delay is not necessary. The ground No.11 of the memo of appeal may be treated to be sufficient prayer for condonation of delay. However, learned counsel for the petitioner is quite correct in arguing that firstly delay can not be condoned unless cause of delay is explained through affidavit and secondly without condoning the delay appeal can not be heard on merit.
Accordingly, all the three writ petitions are disposed of with the following direction:
The State which is appellant before the lower appellate court may file affidavit of some officer for condonation of delay in filing appeals before the appellate court. Thereafter petitioners who are respondents in the appeals shall be granted time to file counter affidavit and thereafter question of condonation of delay shall be decided.
Appeals shall be posted for hearing only if Additional Commissioner condone the delay in filing appeals.
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