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 barred appeal, the appeal was not accompanied by any application or affidavit for condoning the delay, therefore, the appeal was liable to be dismissed under Order 41 Rule 3A of Civil Procedure Code. He has further urged that in view of the provisions contained in Section 3(1) of The Limitation Act,1963, the appeal was liable to be dismissed as the Memo of Appeal did not accompany delay condonation application or affidavit.

4. The last date of limitation for filing the appeal was 30th August, 2008. The appeal was filed on 16th May, 2009. The application for condonation of delay was filed on 26.2.2010 as reported by the Computer Section, though the Civil Application presentation form filled by the appellant's counsel or his office mentions that the application was filed on 11th December, 2009, it was not supported by any affidavit. The affidavit in support of the application was filed by Dineshbhai Gordhanbhai Sonigara, Deputy Engineer, City Sub Division, on 16th August, 2010, wherein delay was tried to be explained in filing the appeal. In the affidavit it is stated that the appellant handed over papers to their counsel on 3.12.2008, but the file was lost in the counsel's office and later on it was traced out and appeal was filed on 15.5.2009. There is no explanation from 16.5.2009 to 16.8.2010 in the affidavit.

5. Order 41 Rule 3A of The Code of Civil Procedure, 1908 reads as under:

"3A. Application for condonation of delay-(1) 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.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal."

Sub-rule (1) of Rule 3A of Order 41 of Civil Procedure Code provides that when an appeal is presented after expiry of the period of limitation, it shall be accompanied by an application supported by an affidavit giving all the detailed facts on which the appellant wants to satisfy the Court that he was prevented by sufficient cause in not filing the appeal within the prescribed period of limitation. Therefore, this Rule mandates that if a time barred appeal is fil