V. M. SAHAI –

1. The short question that arises for consideration in this appeal is whether a time barred appeal can be filed and is maintainable without an application and affidavit for condoning the delay?

2. This First Appeal has been filed under Section 96 of the Civil Procedure Code challenging the judgment and decree dated 31st March, 2008 passed by the learned Principal Senior Civil Judge, Khambhalia dismissing Special Civil Suit no. 20 of 1997 filed by the appellant-plaintiff. The appeal has been filed on 16th May, 2009 whereas the limitation for filing the appeal had expired earlier on 30th August, 2008. The appeal was not accompanied by any application or affidavit for condoning the delay. However, Rule was issued to the respondents on 18th November, 2010.

3. We have heard Ms. Maya Desai, learned counsel holding the brief of Mr. M.D.Pandya, learned counsel for the appellant and Mr. B.P.Munshi, learned counsel appearing for the respondent. The learned counsel for the appellant has prayed for condonation of delay in filing the appeal. Mr.Munshi, appearing for the respondent seriously objected to the condonation of delay. He urged that at the time of filing time b