Adherence to the rules of limitation and the public policy underlying the principles of limitation is crucial, and insufficient grounds for delay condonation may lead to dismissal of the application and the appeal.

Pramod Kumar Srivastava, J. –

Heard learned counsel for the appellants/applicants on disposal of delay condonation application in filing the memorandum of appeal within time.

2. Admittedly against the judgment of trial court, Civil Appeal no. 118/2012 was preferred which was allowed by judgment dated 2.1.2014 of Additional District Judge, Court No. 8 Azamgarh. Then aggrieved by the said judgment of first appellate court, respondent of the said appeal (present applicant/appellant) had moved review petition no. 12/2014 on 15.07.2014. After hearing, the lower appellate court had rejected the said review petition on 08.02.2016. Then present time barred appeal (Memorandum of Second Appeal) has been preferred by the respondent of first appeal along with delay condonation application.

3. The grounds of delay condonation application is mentioned in paragraphs 2 to 5 of the aforesaid affidavit supporting said application which is quoted as under:

“2. That, against the judgment and decree dated 2.1.2014 passed in Civil appeal no. 118 of 2012, defendant/appellant under legal advise filed a Civil Misc. Review Application No. 12 of 2014 dated 15.7.2014, which was heard by the Additional District Judge, Court No. 8, Azamgarh.

3. That Additional District Judge, Court No. 8, Azamgarh heard the aforementioned review application no. 12 of 2014 on 8.2.2016 and same was rejected by Additional District Judge, Court No. 8 Azamgarh vide order dated 8.2.2016 on the ground of delay.

4. That, the delay has been caused due to the fact that appellants were advised to peruse the remedy of review application before the lower appellate Court, which was rejected on 8.2.2016, as such delay in filing the second appeal before this Hon'ble Court against the judgment and decree of lower appellate Court dated 2.1.2014 be condoned.

5. That, in view of the facts and circumstances stated in preceding paragraphs, it is expedient in the interest of justice that this Hon'ble Court may kindly be pleased to allow the present application and to condone the delay, if any in filing the present second appeal, otherwise the applicant/petitioner will suffer irreparable loss and injury.”

4. The only grounds taken in this affidavit is that appellants were advised to pursue remedy of review before lower appellate court, and when such review application was rejected on 8.2.2016, then they have filed memorandum of second appeal before this Court. Learned counsel for the applicants-appellants submitted that litigant should not suffer due to acts of his counsel, and in present matter appellants were advised to prefer review petition instead of second appeal, therefore the delay in filing the memorandum of second appeal is for justifiable reasons and delay should be condoned.

5. Order 47 of CPC deals with procedure of review. Rule- 1 (a) of this Order provides that any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred may prefer review petition. In present matter, there is right of preferring second appeal against the judgment of first appellate court. In such case, review was maintainable only when appellant had opted not to prefer appeal.

6. A perusal of the facts made available before this Court make it clear that after judgment of first appeal on 2.1.2014, applicants-appellants had chosen not to prefer Second Appeal, therefore no second appeal was preferred within period of limitation. Even on the legal advice, he preferred review petition on 15.7.2014, which was beyond period of limitation for filing second appeal as well as beyond the period of limitation for filing review application. Review petition was also filed with application under Section 5 of Limitation Act that was rejected for insufficient ground.

7. From perusal of the record, in fact available before this Court, it appears that initially applicants-appellants had decided not to prefer second appeal, so he had not taken any step in that