R. Basant, J.

The short but interesting question arises for consideration in this Writ Petition is whether an application under O.41 R.3-A of the C.P.C. must invariably be accompanied by an affidavit of the appellant concerned.

2. The fact situation is simple. The petitioner wanted to prefer an appeal under S.61-D of the Kerala Forest Act. There was a delay of 162 days in filing the appeal. According to the petitioner, he had done the needful and had entrusted his counsel to file the appeal. But unfortunately the appeal could not be filed in time as the counsel had misplaced the case bundle. It was traced only two days prior to the actual date of filing the appeal. The petitioner/appellant, in these circumstances, prayed that the appeal may be entertained after condoning the delay in filing the appeal. That petition was filed by his counsel on his behalf. That petition filed by his counsel on his behalf was supported by an affidavit filed by the counsel wherein the counsel owned the responsibility for the delay of 162 days in filing the appeal. There are categoric statements in the affidavit by the Advocate that the delay of 162 days occurred on account of his fault in misplacing the case bundle entrusted with him by the petitioner/appellant.

3. The court below considered the prayer for condonation of delay. The learned Additional District Judge took the view that an affidavit filed by the counsel is not sufficient to support the prayer for condonation of delay under O.41 R.3-A of the 1CPC. The relevant observations appear in para-4 of the impugned order, - Ext.P4 which I extract below in extenso:

"It is to be noted that the petition is supported by the affidavit filed by the counsel appearing for the petitioner. The counsel has no right at all to file the affidavit in the matter. The appellant petitioner may put forward the grounds if any praying to condone the delay. The carelessness of the counsel is not a sufficient ground to condone the delay of 162 days in filing the appeal. Since the petition is not supported by the affidavit of the appellant/petitioner the petition is not maintainable. Point is answered accordingly.

In the result, the petition is dismissed.

In view of the dismissal of IA 3208/05 CMA is dismissed." (emphasis supplied)

4. The question is found to be of frequent occurrence before the courts below and therefore the learned counsel for the petitioner and the learned Government Pleader were requested to advance their detailed arguments.

5. O.41 R.3-A of the CPC reads as follows:

"3-A. 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) xxx xxx xxx

(3) xxx xxx xxx

6. The question that arises for consideration is not whether the affidavit by a counsel can be accepted or not. That would certainly depend upon the facts and circumstances of each case. In Mata Din v. A. Narayanan (AIR 1970 SC 1953), the Supreme Court reiterated the law in para 6 in the following words:

"The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely a devise to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way."

On that aspect, there is no dispute. It would depend upon the nature of the inadequacy/error on the part of the counsel. In the instant case, it is not any wrong advice given by the counsel, but the inability of the counsel to file the, appeal entrusted to him for filing within the date and its presentation later only after 162 da