THE WORD "PROCEEDING" IN THE PROVISO TO SUB-SECTION (2) OF SECTION 40 OF THE SPECIFIC RELIEF ACT, 1963, INCLUDES ALL PROCEEDINGS IN THE SUIT FROM INSTITUTION TO FINAL DISPOSAL, INCLUDING APPEALS.

( 1 ) HAR Samp, plaintiff, owns agricultural land in village Mandaoli Fazalpur. Adjoining land is owned by Jagdish and others, defendants. The defendants, while excavating earth from their land, are alleged to have excavated earth from a part of the plaintiffs land and later on,refused to restore it. The plaintiff filed a suit against the defendants claiming mandatory injunction for restoration of earth.

( 2 ) THE defendants raised various pleas in defence. One of the pleas was that the suit was not maintainable in view of section 41 (h) of the Specific-Relief Act, 1963 (Act No. 47 of 1963 ). The tribal court came to the conclusion that since equally efficacious remedy of damages was available to the plaintiff so mandatory injunction could not be granted, and since he had not claimed damages this relief was prohibited by sub-section (2) of section 40 of the Act. The suit was, therefore, dismissed.

( 3 ) THE plaintiff filed an appeal. One of the grounds taken in appeal was that the tribal court should have afforded an opportunity to amend the plaint to enable the plaintiff to claim damages in the alternative. It was thus prayed, in the alternative, that the plaintiff be granted an opportunity to amend the plaint for claiming damages.

( 4 ) THE plaintiff also filed an application for amendment of the plain under Order 6 Rule 17 of the Code of Civil Procedure for claiming damages in the alternative. The defendants opposed the application. However, the lower appellate court allowed amendment of the plaint, set aside the judgment and decree passed by the trial court, and remitted the case to the trial court. The defendants have now come up in second appeal.

( 5 ) MR. S. S. Shukia, learned counsel for the respondent, raised a preliminary objection that the appeal was barred by time.

( 6 ) THE impugned judgment is dated March 5, 1977. The appeal was filed without a certified copy of the judgment on April 23, 1977. However, an application was made for exempting the appellants from filing certified copies of the impugned judgment as well as the judgment of the trial court. This court, while admitting the appeal on April 27, 1977, directed the appellants to file certified copies of the judgments within limitation. When the appeal came up for arguments on September 12, 1977 an objection was raised by Mr. Shukia that the appeal was barred by limitation because the appellants had failed to file certified copies. Mr. N. S. Dass Bahl, learned counsel for the appellants, obtained an adjournment to file them. Thereafter certified copies of the judgment and decree of the lower appellate court as well as the judgment of the trial court were filed on September 12, 1977. Application (C. M. No. 1655 of 1977) for condonation of delay was filed on September 17, 1977. The certified copies of the judgment and decree of the lower appellate court show that these were applied for on April 23, 1977 and the copies were read on May 7, 1977. Copy of the judgment of the trial court was applied for on April 25, 1977, and it was ready on July 18, 1977. Apparently the appeal is hopelessly barred by time.

( 7 ) THE delay is sought to be explained on the ground that the clerk of the lawyer, conducting the case in the lower appellate court, had applied for copies but had misplaced the slips issued by the Copying Agency and these could only be traced on September 7, 1977. The affidavit of this clerk does not disclose any facts and circumstances under which the slips issued by the Copying Agency came to be misplaced and were. later on, found. Obviously the affidavit does not disclose the truth. Moreover, admitted the copies were obtained on September 7, 1977 when these were handed over by the clerk to Ramesh Chand appellant who is stated to be pursuing the appeal. But these were not immediately filed. The only reason for his not filing the copies is stated to be that "the case was not listed on 8th and 9th instant, and being a government servant he cou