1. This is an application purported to have been filed under Section 5 of the Limitation Act with a prayer for condoning delay of 28 days in filing the accompanying appeal (LPA no. 290/2011).

2. In para 3 of the application it has been averred that the applicant was suffering from typhoid and the doctor advised him to take complete bed rest from 20.10.2011 to 24.11.2011. The pre#31;scription slip, which has been dubbed as a Medical certificate in para no. 3, has been placed on record. There are other usual averments in para nos. 4 and 5, viz. that the applicant lost time in providing all the relevant material to the counsel for drafting and filing the appeal and the delay is neither delib#31;erate nor intentional.

3. The application has been hotly contested by respondent no. 5 who has filed objections. In reply to para no. 3 to 5 the following averments have been made:-

"That the paras under reply are in#31;correct and misleading. The applicant has no ground to seek condonation of delay. In order to mislead this Hon'ble Court the applicant has produced fake medical certificate in support of the present application. It is submitted that the doctor, whose prescription/medical certificate was produced by the applicant in support of condonation of delay application, has certified that the prescription paper submitted by the applicant before this Hon'ble Court has not been written by him and is forged one. Copy of the certificate of doctor is annexed herewith as Annexure R1.

It is further submitted that the applicant has this deliberately made an attempt to mislead this Hon'ble Court by producing fake medical cer#31;tificate before this Hon'ble Court and sworn wrong affidavit in support of the application and therefore the ap#31;plicant needs to be dealt with under law with heavy hand".

4. The averments made in the ob#31;jections are supported by the certificate of Dr. Javid Ahmad Matoo (R-1) who has stated that the applicant has submit#31;ted a prescription slip before the High Court dated 20.10.2011 stating that he was under the treatment of Dr. Javid Ahmad Matoo for typhoid with effect from 20.10.2011 to 24.11.2011. The doc#31;tor has asserted that the prescription has never been written by him and it is a forged piece of evidence. Copy of the forged prescription has also been annexed with the certificate issued by the doctor. The learned counsel for non-applicant-respondent no.5 has also placed on record a copy of the complaint made to Station House Officer, Police Station Yaripora dated 14.03.2012. There is no counter affidavit in reply to the objections raised by respondent no.5.

5. We have heard learned counsel for the parties.

6. Ordinarily a period of 28 days de#31;lay could have been condoned without much ado. However, in the present case the applicant seems to have supported his illness by the prescription of a doc#31;tor which has been disowned by the doctor. In fact the doctor has gone to the extent of dubbing the prescription as a fabricated piece of evidence. On the one hand we cannot record a cat#31;egoric finding that the prescription is authentic and on the other we cannot say at this stage that it is fabricated, particularly when the matter is being investigated by the police.

7. However, we are of the view that the averments made in para no.3 can#31;not constitute basis for us to accept that the applicant was ill because he has failed to file any counter affidavit controverting the allegation of fabrica#31;tion despite the fact that we have asked the learned counsel to seek time for that purpose.

8. In view of the above, the applica#31;tion is dismissed. Once the delay is not condoned and the application for that purpose has been dismissed, then the appeal would also not be maintainable. Accordingly, the same is also disposed of being not maintainable.

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