- (1.)This application has been preferred by the applicant/ appellant under Section 5 of the Limitation Act for condonation of delay of two years and seven months in filing of the appeal. The applicant/ appellant has made the following averments in support of his application:
"That the judgment in the appeal filed by the appellant/applicant was passed by the Ld. Additional District Judge, Bilaspur on 26.11.2009, whereafter the copy of judgment was supplied to the learned counsel representing the appellant/applicant on 4.12.2009. Thereafter, the intimation was sent to the appellant/applicant by the Ld. Counsel on 15.6.2009.The applicant is working as mason being out of station to earn his livelihood, did not receive the intimation. It is only on 17.07.2010 when the appellant/applicant made enquiries with regard to the fate of his appeal from the Ld. Counsel, thereafter he came to know for the first time of the decision of the appeal. Immediately thereafter, the appellant/applicant visited Shimla on 27.7.2010. That the counsel advised the applicant to bring the certified copy of the judgment dated 26.11.2009. That on 2.8.2010 the counsel intimated the applicant to bring the certified copy of the trial court judgment, but the applicant did not receive the intimation as the applicant had gone to Una in respect of treatment of his son with the vaid and started earning his livelihood. That on 23.6.2011 the counsel again written the letter by registered post. The copy of the same is attached herewith as Annexure A-1. That the applicant did not receive the letter as the applicant was at Hamirpur in respect of the treatment of his son. The copy of treatment receipt is attached herewith as Annexure A-2. Thereafter, the applicant remained mentally upset in respect of the treatment of his son did not filed the appeal. It was only in the first week of September, 2012 applicant came with the certified copy of the judgment along with other record of his case. Immediately thereafter, the appeal was got prepared with promptitude and without further delay, there is delay of about 2 years and seven months in filing of the appeal."

(2.)Upon notice, the respondent No.1 filed reply to this application and alleged that the applicant/appellant in fact has concocted false story since he is usually residing on the address given by him in the memorandum of parties. It has been further alleged that the story as has been invented in order to make out a case against the delay condoned by hoodwinking the Court by narrating false facts before the Court. It is alleged that there is no explanation whatsoever between 27.7.2010 till the filing of the appeal.
(3.)When the case was listed before the Court on 28.2.2014, this Court passed the following order:
"CMP(M) NO.1618 of 2012

Let supplementary affidavit be filed by the applicant explaining the delay, particularly from the period 27th July, 2010 till the filing of the appeal. This will be done within a period of three weeks.

List on 21.3.2014."

In terms of the aforesaid order, the applicant/appellant has filed a supplementary affidavit to the following effect:

"2. That the deponent did not receive the intimation sent by the Ld. Counsel dated 15.6.2010. It was only on 17.07.2010 when the deponent made enquiries with regard to the fate of his appeal from the Ld. Counsel, thereafter he came to know for the first time of the decision of the appeal. Immediately thereafter, the deponent visited the office at Bilaspur and only received the copy of judgment under appeal and was intimated that your case file is not traceable as the matter has been decided in the year of 2009. That thereafter deponent visited Shimla on 27.7.2010. That the counsel advised the applicant to bring the certified copy of the judgment dated 26.11.2009 and complete case file. That on 2.8.2010 the counsel intimated the applicant to bring the certified copy of the trial court judgment, but the applicant did not received the intimation as the applicant had gone to Una in respect of treatment of his son with the vaid and started earning his livelihood.

3. It is submitted that with effect from 2.8.2010 till first week of September, 2012 applicant remained out of station at Una, Hamirpur, Digal, Amritsar and Jalandhar in respect of treatment of his son and was mentally upset. Apart from that the deponent was not having sufficient means to earn his livelihood and even to pay the balance fee of the counsel at Bilaspur as well at Shimla. That the deponent has spent all his saving in respect of treatment of his son during 2.8.2010 till first week of September, 2012."