Appeal--Delay in Refilling-- Even if appeal was filed within a period of limitation, delay in refilling as such cannot be condoned as a matter of right.
Appeal--Delay in Refilling--Total period provided for the completion of the re-filing process is 40 days under the Rules and in the absence of the any satisfactory explanation the appeal is liable to be dismissed.

G.S. Sandhawalia, J.

CM-27207-CII-2011, CM-27208-CII-2011, CM-27209-CII-2011 and CM-15411-CII-2015

1. Vide the abovesaid applications the appellant seeks the condonation of the inordinate delay of 1912/2112 days in re-filing of the present first appeal.

2. The second application has only been occasioned on account of the fact that the office asked the counsel for the applicant/appellant to file a consolidated application for the delay which was taking place on repeated occasions running over 6 years in point of time.

3. CM-27209-CII-2011 has also been filed to affix the requisite Court fee as provided under the Punjab and Haryana High Court Rules and Orders.

4. The appeal filed by the respondent arises out on the ground of probate of Plot No.2077, Sector 37-C, Chandigarh, which has been issued in favour of respondent No.2 on 17.01.2005 who was the applicant/petitioner before the Additional District Judge. The present applications are a case of apparent misuse of the liberty which was granted time and again for complying with the objections, which have been raised by the office for negligent and casual attitude in dealing with the filing of the appeal.

5. Counsel for the applicant/appellant has submitted that since the appeal was filed within a period of limitation on 22.03.2005, therefore, it is a matter of right that re-filing as such is to be allowed.

6. However, for the reasons set down before this Court that the total period provided for the completion of the re-filing process is 40 days under the Rules and in the absence of the any satisfactory explanation as such the present appeal is liable to be dismissed in view of the inordinate delay, which has taken place. Respondent No.2 vide his reply has accordingly objected to the said applications on the ground that no sufficient cause as such has been shown.

7. The record would go on to show that initially the appeal was filed on 22.03.2005 and the following objections were raised on 02.04.2005:-

“(1) A Stamp Vendor Certificate should be obtained.

(1) Opening sheet is properly filed.

(2) As to how RFA is competent in this case?

(3) Paper-book should be properly arranged.

(4) P/A should be stamped.

(5) Dates regarding memo of parties and grounds of appeal do not tally with the Index.

Any other case Retd. to be refiled within a week.”

8. Thereafter, the appeal was re-filed only on 16.07.2008 after a period of more than 3 years by mentioning that the Regular First Appeal is competent under Section 299 of the Indian Succession Act, 1925. The explanation given in the application for delay is that the same had been put in the admitted cases of the High Court and on being located it was re-filed by the Clerk, who has now expired on 16.11.2005. The same was again returned on 25.08.2008 on the ground that the objections raised earlier have not been complied with, the number of the days for which the delay had taken place was not correct and each page of affidavit be got signed. Thereafter, the case was filed for the third time on 19.11.2008 with the endorsement that compliance had been done. It was returned on 12.12.2008 on the ground that objections dated 02.04.2005 still had not been complied with and how the Regular First Appeal was maintainable. The said objections read as under:-

“(1) Objections raised on 2/4/05 have still not complied with.

(2) How RFA is maintainable?

(3) Any other case?”

9. It is alleged in the application that the case was again put in another brief and while arranging office record the FAO was found. No explanation has been given as to on what account the case was immediately not re-filed, after it was returned by the office, which has been highlighted by the respondent also.

10. Thereafter, it is alleged that since the case was put in another brief and could not be located and was only filed after on 04.05.2009 for the fourth time. A perusal of the objections raised on 26.05.2009 would go on to show that neither the earlier objections had been complied with and a fres