JUDGMENT :

Arun Bhansali, J.

1. Office has reported the appeal to be barred by 2252 days.

2. This second appeal under Section 100 CPC is directed against the judgment & decree dated 22/2/2014 passed by the Addl. District Judge, Barmer, whereby, the appeal filed by the respondent against the judgment & decree dated 19/9/2012 passed by the Addl. Civil Judge (Sr. Div.), Barmer was accepted and the decree passed by the trial court was modified.

3. The suit was filed by the respondent for permanent injunction, which came to be decreed by the trial court to the extent of 45'x30' in terms of the Commissioner's report, wherein, the portion was marked as A, B, C, D.

4. The plaintiff being not satisfied with the decree granted by the trial court, filed first appeal.

5. The first appellate court allowed the appeal and granted decree to the extent of boundaries indicated in para 1 of the plaint.

6. The appellate decree was passed on 22/2/2014 and the present appeal has been filed on 22/7/2020. Along with the appeal, an application under Section 5 of the Limitation Act, 1963 has been filed seeking condonation of delay in filing the appeal with the following averments:

"2. That as the decision of the first appeal was not conveyed to the appellants by the counsel before the learned trial court or was not received by the appellants. However, as soon as the appellants came to know recently about allowing the first appeal in favour of the plaintiff-respondent, the appellants rush to the office of the counsel and obtained the copy of the judgment and decree which is under challenge and rushed to Jodhpur and engaged the counsel at Jodhpur and filed the First Appeal. Thus, the appellants could not file the appeal before this Hon'ble Court within prescribed limitation and it is just and reasonable and sufficient cause that the appellants could not file the appeal within the prescribed limitation. The causing of delay in filing the appeal deserves to be condone in the interest of justice. The present appeal has been filed by committing delay.

3. That the appellants have no intention to approach this Hon'ble Court after completion of prescribed limitation. Due to reasons described above, bonafidely the appellants have approached this Hon'ble Court after the expiry of prescribed limitation."

(emphasis supplied)

7. On notice being issued, the respondent filed reply to the application seeking condonation of delay, contesting the averments made in the application. It was pointed out that the appellants have taken contradictory stand, on the one hand they have claimed that the decision of first appeal was not conveyed to the appellants by the counsel and on the other hand they have claimed that the decision of the first appeal was not received by the appellants. It was also alleged that the application was laconic and that after the decision by the Addl. District Judge, the respondent raised the construction on the land in question and the appellants were having knowledge of the judgment and decree since 22/2/2014 and, as such, they are not entitled to seek condonation of delay based on the submissions made in the application.

8. On 21/1/2021, after arguing for sometime on the application, time was prayed for on behalf of the appellants, whereafter, an additional affidavit has been filed by the appellants inter alia seeking to indicate fresh reasons for the delay in filing the appeal, as apparently the averments made in the original application were laconic.

9. It is claimed in the additional affidavit that the counsel representing the appellants before the appellate court passed away on 4/4/2016, he never informed the appellants about the final decision rendered in the first appeal and as such the appellants were not aware of the decision until a notice dated 27/1/2020 was received by the appellant no. 2 from the office of Panchayat Samiti. It is claimed that on receipt of the notice, queries were made about passing of the order in appeal and the notice was responde