IMPORTANT POINT
Delay in filing appeal cannot be condoned unless explained satisfactorily.

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the order dated 15.10.2015 passed by the High Court of Judicature at Allahabad in Second Appeal No.819 of 2015 in and by which the High Court affirmed the order of the First Appellate Court dismissing the application filed under Section 5 of the Limitation Act and declining to condone the delay of 349 days in filing the appeal.

3. Respondent No.1-Raziya (since dead) filed a Civil Suit No.591 of 1979 against the appellants No.1 to 3 for cancellation of sale deeds dated 17.02.1979 and 17.05.1979 in favour of the appellants and for relief of permanent injunction against them over the suit land. Respondent No.1-Raziya (since dead) contended that appellants No. 1 to 3 forged documents and executed a bainama of the suit property in their favour on 17.02.1979. Some part of the suit property was also sold to appellant No.4-Mahesh by sale deed dated 17.05.1979. The respondents resisted the suit contending that respondent No.2-Hadisunnissa executed a Hibanama in favour of respondent No.1-Raziya Khanam (since dead) on 27.02.1979 of her properties and building situated in the village Nadva Khas and Revri Dihi and other villages on 27.02.1979 in the consolidation office.

4. The said Suit No.591 of 1979 was decreed on 16.04.1981 against appellants No.1 to 3 with the observation that they had been properly served and had appeared and sought time for filing written statement; but despite ample time being given, they had not filed written statement.

5. In appeal by appellants, the First Appellate Court noted that appellant No.3-Mohd. Asid was a minor at the time when the original suit was filed and the proceeding for appointment of his legal guardian has not been completed in accordance with law and in such circumstances, it could not have been possible to have proper service upon appellant No.3-Mohd. Asid. After considering the submissions of appellants No.1 to 3, the First Appellate Court vide order dated 29.11.1985 allowed the appeal and remitted the matter back to the trial court with a direction to rehear both the parties and decide the case on merits with costs of Rs.50/-payable by the appellants and filing written statement on or before 03.01.1986.

6. Respondent No.1-Raziya Khanam (since dead) filed a Writ Petition(C) No.19550 of 1985 before the High Court against the order of the First Appellate Court in which interim order dated 20.02.1985 was passed by the High Court. The said writ petition remained pending for nearly fifteen years. In the said writ petition, the appellants herein were neither served nor they entered their appearance. The High Court noted that the First Appellate Court recorded a finding that the appellants were not served with notice and rightly set aside the decree dated 16.04.1981 and remanded the matter back to the trial court. The said writ petition was dismissed on 20.02.2001 and order of interim stay dated 20.02.1985 was vacated.

7. The order sheet of the trial court dated 30.05.2011 indicates the order dated 20.02.2001 passed in Writ Petition (C) No.19550 of 1985 was produced before the trial court. The fact that the order in the said writ petition was placed before the High Court on 30.05.2011 is clear from the order sheet of the trial court dated 04.03.2011 which reads that “Proceeding of suit is stayed by Hon’ble Allahabad High Court Record may be produced on 30.05.2011 for further orders.” Before the trial in Suit No.591 of 1979 was taken up, substitution applications No.113K2, 114G2, 115G2, 116G2 and 117G1 were taken up and orders were passed on various dates.

8. Though the appellants claimed that they were not present before the trial court in Suit No.591 of 1979, the order sheet dated 14.10.2011 passed by the trial court in Suit No.591 of 1979 notes the presence of both the parties in the trial court on 14.10.2011 when the submissions of the parties regarding preliminary issues were considered and subsequent date i.e. 18.10.2011 was