JUDGMENT

Mr. M.S. Ramachandra Rao, J. (Oral)

CM-268-LPA-2018 & LPA No.123 of 2018

This is an application filed by the State of Haryana and others appellants seeking condonation of delay of 387 days in filing the accompanying appeal challenging a clarification issued by the learned Single Judge on 20.10.2016 in CM-6315-CWP-2014 in CWP-8058-2009 of the order passed by him on 25.02.2010.

2. In the application filed for condonation of delay, it is contended that the appellants had considered the matter at different levels and felt that the relief granted by the learned Single Judge in C-6315- CWP-2014 was not legally tenable and then decided to file LPA against the order dated 20.10.2016 passed by the learned Single Judge. According to the application, the Additional Chief Secretary to Government of Haryana, Education Department, requested the office of the L.R., Haryana to issue sanction under Para 20.4(c) of the Law of the Department Manual on 02.11.2017 and then the LPA came to be filed with a delay of 387 days.

3. There is no explanation as to what transpired after the order of the learned Single Judge was passed on 20.10.2016 till 18.01.2018 except what is indicated in the application. Why it should have taken such a long time for the appellants to take a decision, whether or not to prefer an appeal against the order of the learned Single Judge passed on 20.10.2016, is not explained.

4. Learned counsel for the appellants however contended that an appeal is a matter of right and that any delay in filing the appeal should be condoned by taking a sympathetic view of the matter.

5. Learned counsel for the appellants has placed reliance on the decision of the Supreme Court in The Commissioner , Mysore Urban Development Authority v. S.S. Sarvesh 2019 (2) Scale 475 .

6. In that case the respondent had filed a Civil Suit before the Principal Senior Civil Judge and Small Causes Court, Mysuru for declaration of his title and permanent injunction in relation to certain immovable property. The appellant, on being served, filed a written statement and both parties adduced their evidence, and thereafter a judgment was pronounced on 20.03.2012 by the trial Court decreeing the suit.

7. The appellant then filed a first appeal under section 96 of CPC, 1908 in the Court of the Principal District and Sessions Judge, Maysuru.

8. When the appeal was listed for hearing on 25.04.2014, the counsel for the appellant did not appear and the Appellate Court dismissed the appeal in default.

9. The appellants then filed an application for recall of the order dated 25.04.2014 and sought restoration of their appeal for its hearing on merits but the said application was dismissed on 29.06.2016.

10. The appellants then approached the High Court under Article 227 of the Constitution of India but the said Writ Petition was also dismissed.

11. The appellants then approached the Supreme Court.

12. The Supreme Court held that the order of refusal to readmit the appeal passed by the Appellate Court under Order 41, Rule 19 of CPC was expressly made appealable under Order 43, Rule 1 (t) of the CPC to the High Court and that the said remedy ought to have been availed of by the appellant and an application under Article 227 of the Constitution of India ought not to have been filed by it.

13. It further observed that even if there was such an error on the part of the appellant, the High Court should have converted the application filed under Article 227 into an appeal under Order 43, Rule 1 (t) of the Code or permitted the appellant-Authority to withdraw the Writ Petition with liberty to file an app