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2010 DIGILAW 1751 (ALL)

Shiv Prasad v. State of U. P.

2010-05-25

RAKESH TIWARI

body2010
JUDGMENT 1. Heard learned counsel for the appellants on delay condonation application and perused the record. 2. Suit No. 166 of 1995 (Shiv Prasad & others Vs. State of U.P. & others) was filed by the plaintiff/appellants for permanent injunction against the defendants/respondents restraining them, their employees, assignees and subordinates etc. from realising the amount of Rs.32,757.85/- which had accrued with interest on the principal amount of loan of Rs.20,000/- advanced by plaintiff/respondent no. 4. 3. The suit of the plaintiff/appellants was dismissed by judgment and order dated 31.10.2000 passed by Ist Additional Civil Judge (Junior Division), Kanpur Dehat. 4. Aggrieved by the said judgment dated 31.10.2000, the plaintiff/appellants filed First Appeal No. 73 of 2000 (Shiv Prasad & others Vs. State of U.P. and others) which has also been dismissed by judgment and order dated 11.11.2009 passed by Additional District Judge, Court No. 9, Kanpur Dehat. 5. The contention of the learned counsel for the appellant is that the plaintiff/appellants no. 4, 5 and 6 claim themselves to be minor in the year 1985-86 and as such they were neither eligible to become members of the Samiti nor could have given consent for the loan of Rs.20,000/-, and as such recovery certificate cannot be issued against them. He further submits that in the facts and circumstances of this case, the delay in filing appeal be condoned. 6. In support of his contention, learned counsel for the appellants has relied upon Order 41 Rule 3-A of C.P.C. which provides filing of application for condonation of delay. Order 41 Rule 3-A reads as under: "When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period". 7. Thus, in short, the contention of learned counsel for the appellants for condonation of delay is in two folds; (1) that seven appellants could not arrange the money for filing of second appeal in time up to 26.2.2010 and thereafter filed this appeal on 21.5.2010 after delay of 83 days and (2) that appellants no. 4, 5 and 6 being minor at the time of registration in the Samiti, as such the delay in filing appeal is liable to be condoned. 8. 4, 5 and 6 being minor at the time of registration in the Samiti, as such the delay in filing appeal is liable to be condoned. 8. After hearing learned counsel for the appellants, I am of the view that the averments made in the affidavit supported by delay condonation application that the appeal could not be filed within time due to financial trouble, is wholly vague and without basis. As sufficient cause has not been shown and the Court is not satisfied in terms of Order 41 Rule 3-A of C.P.C. which is quoted above, the Court does not see any reason for not rejecting the delay condonation application and for issuing notice to the respondents. The courts below have given sufficient reason to disbelieve the case of appellants no. 3, 4, 5 and 6 that they were minors, hence I do not propose to pass any order on merits of the appeal. 9. For all the reasons stated above, the delay condonation application no. 156223 of 2010 is rejected and accordingly the appeal also stands dismissed.