JUDGMENT M.M. Gopal, Member - This is a second appeal against the judgment dated July 10, 1981 of the learned Commissioner by which he dismissed the appeal as time barred which was filed against the judgment of the trial court dated September 29, 1977. 2. Heard the learned counsels for the parties and perused the file. 3. The facts of the case are that a suit under Section 229-B of U.P. Act 1 of 1951 was filed in the trial court with the allegation that the plaintiff may be declared Bhumidhar of the land in suit. Written statement was filed and after that the trial court by its order dated September 29, 1977 dismissed the suit. An appeal was preferred. That appeal was dismissed as time barred by the learned Commissioner vide his order dated July 10, 1981. Hence this second appeal. 4. The learned counsel for the appellant has contended that the appeal filed on December 15, 1977 against the judgment dated September 29, 1977 and at the time of filing of the appeal an affidavit sworn on November 21, 1977 has been filed. In that affidavit the fact has been mentioned that the appellant fell ill on October 28, 1977 and was ill upto November 19, 1977. Later on he filed another affidavit dated January 27, 1981 that he was ill from November 20, 1977 to December 14, 1977. This affidavit is accompanied with medical certificate. It is contended that the lower appellate court should have accepted the same and condoned the delay because a lenient view should be taken in such cases and the parties should be given an opportunity to argue their case on merit. The learned Commissioner in his judgment dated July 10, 1981 has held that the second affidavit was filed after the objection raised by the other side and the affidavit dated November 21, 1977 was sworn in Kashipur whereas the deponent lives in Jaspur. On these grounds he has rejected the second affidavit and then held that there is no evidence to show the delay in filing the appeal. 5. The learned Commissioner thus has given three grounds for not condoning the delay. Firstly, that there is no effective evidence, secondly the secondly the second affidavit was after thought and thirdly, that the appellant could have filed the appeal when he could sworn an affidavit on November 21, 1977. 5. The learned Commissioner thus has given three grounds for not condoning the delay. Firstly, that there is no effective evidence, secondly the secondly the second affidavit was after thought and thirdly, that the appellant could have filed the appeal when he could sworn an affidavit on November 21, 1977. The learned Commissioner has considered the application on such grounds which are not relevant for disposing of that application of condonation of delay. On presumption the application could not be decided. He could have come on November 21, 1977 or not, he could have filed the affidavit earlier cannot be a ground for rejecting the reasons given for delay in filing the appeal. These are the presumptions and on the presumption an application cannot be decided. The other point that there is no evidence also appears to be wrong on the face of evidence. From the file it is evidently clear that there are two other affidavits and two medical certificates in respect of the illness or the opening of the shop of Pawan Kumar in Jaspur in respect of the normal working of the shop of Pawan Kumar, appellant in Market Jaspur. Hence in my opinion, the learned Commissioner has decided the application on legally irrelevant considerations and on a fact which is wrong on the face of it. 6. I, therefore, allow the second appeal and remand the case to the court of Commissioner for disposing off the application in accordance with law and on the basis of the observations made above. The appeal may be decided at an early date.