The applicant must establish sufficient cause for not preferring the appeal within the period of limitation, and the mere bald statement of acting under wrong legal advice without particulars is not enough to satisfy the court.

RIPUSUDAN DAYAL, CJ.

( 1 ) THE applicant has filed this application under section 5 of the Limitation Act for condonation of delay in filing the Civil Appeal (RFA No. 35 of 2000)against the rejection of his plaint under Order vii Rule 11 (a) (d) of the Code of Civil Procedure by the District Judge, Special Division, gangtok.

( 2 ) THE District Judge, Special Division, rejected the plaint filed by the appellant, on 7. 2. 2000 on the grounds that the plaint does not disclose cause of action and the suit is barred by limitation. The rejection was challenged by the applicant in Civil Revision No. 6/2000 on 8th May, 2000. The Revision was dismissed in limine on 20. 9. 2000 on the ground that the order rejecting the plaint amounts to decree within the meaning of section 2 (2) of the Code of Civil Procedure and, therefore, Appeal lies against such order and not the Revision. Thereafter, on 23. 10. 2000, regular First Appeal No. 35 of 2000 was filed along with the application for condonation of delay. Along with the memo of appeal, a copy of the judgment dated 7. 2. 2000 was also filed. Certified copy of the decree was filed on 6. 11. 2000. The certified copy of the decree discloses that the application for the copy was made on 30. 09. 2000, the copy was ready for delivery on 3. 11. 2000 and the same was delivered to the applicant on 4. 11. 2000.

( 3 ) THE applicant has stated in his application for condonation of delay that the filed the Civil Revision acting on legal advice and in view of the opinion expressed by this court that Appeal, and not Revision, lies he is filing the appeal by way of "abundant caution". It is further stated that the applicant has been pursuing the matter bona fide to challenge the rejection of the plaint and if there has been any delay in filing the appeal, the same is due to sufficient cause and, therefore, the delay may be condoned. The respondents have, in their respective objections, pleaded that there is no sufficient cause for condonation of delay. Respondent No. 1 has pleaded that the name and particulars of the person who had given the wrong legal advice has not been disclosed and shri T. B. Thapa who was conducting the Revision is a lawyer of more than twenty years' standing and he could not have given the wrong advice. Respondent No. 1 has denied that such wrong legal advice was at all given to the applicant and has averred that the revision was filed deliberately knowing the true legal position. It is further pleaded that the order of rejection of the plaint is itself a decree and it was not necessary to draw a separate decree and, in any case, appeal could be filed treating the last paragraph of the judgment as 'decree'. It is also pleaded that the fact that the application for certified copy was filed after the expiry of the period of limitation is irrelevant to the question of condonation of delay. Similar objections have been filed by respondent No. 2, state of Sikkim.

( 4 ) 1 have heard Shri T. B. Thapa, Advocate on behalf of the applicant, Shri A. Moulik, advocate for respondent No. 1 and Shri N. B. Khatiwada, Additional Advocate General on behalf of respondent No. 2.

( 5 ) SHRI Thapa has submitted that the Revision petition was filed under the wrong belief that a Revision lay and not an Appeal. On the other hand, Shri Khatiwada and Shri Moulik have submitted that the bald statement that the applicant had filed the Revision Petition on wrong legal advice in the absence of any particulars, such as the name the lawyer who allegedly gave wrong advice does not constitute sufficient cause. They have further submitted that even after the dismissal of the Civil revision on 20. 9. 2000, the applicant spent a lot of time till 23. 10. 2000 in filing the appeal. It is further submitted that the fact that the decree was prepared on 29. 9. 2000 after the expiry of the period of limitation has no relevance, since the appeal could be filed treating the last paragraph of the judgment as decree, as he himse

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