IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 60 of 2009. Sri Devendra Parasad Harbola, Principal, Sanskirit School, Naga Baba Temple, Ramnagar, District Nainital. … Appellant. Vs. Naga Baba Mandir, through Ekadas Giriji Maharaj, Naga Baba Temple, Ramnagar, District Nainital. …Respondent. Mr. T.S.Phartiyal & Mr. G.C.Kandpal, Advocates, learned counsel for the appellant. Mr. S.K.Jain, Advocate, learned counsel for the respondent. Date July 23, 2010. Hon’ble B.S.Verma, J. (Delay Condonation Application No. 10114 of 2009) (Miscellaneous Application No. 1461 of 2010) Heard learned counsel for the appellant as well as learned counsel for the respondent on the delay condonation application and perused the record. The appellant has moved the delay condonation application to condone the delay in filing the second appeal. As per office report, this second appeal has been filed against the judgment and decree dated 12-7-2006passed in Civil Suit No. 23 of 2006 as well as the judgment and decree dated 5-11-2007 passed by the District Judge, Nainital in Civil Appeal No. 22 of 2006. By the judgment and decree dated 12-7-2006, the learned Civil Judge (Junior Division) Ramnagar (Nainital) has partly decreed the suit of the plaintiff-respondent for permanent injunction and has restrained the defendant-appellant not to damage the properties as mentioned in the impugned decree. By the judgment and decree dated 5-11-2007, the appeal filed by the defendant before the District Judge Nainital was dismissed. Notice was issued to the respondent to his objection against the delay condonation application. The respondent has filed objection contending therein that the second appeal has been filed by the appellant after a lapse of two years. It is also stated in the affidavit that the appellant applied for the certified copy of the judgment and decree for the first time on 29-9-2009 and the same was received by 2 the appellant on 30-9-2009. Therefore, the delay on the part of the appellant is inordinate. No satisfactory explanation has been given by the appellant to condone the delay of about 2 years in filing the second appeal. The appellant has also filed rejoinder affidavit. In the application for condonation of delay, the appellant has taken the stand that the appellant was fully assured by his counsel, engaged in the court of District Judge Nainital, that that the second appeal would be filed in the High Court, but for the first time on 10- 11-2009, the appellant came to know that no such appeal was filed by his counsel. The second appeal has been filed by the appellant as late as 19-11-2009. The learned counsel for the appellant has argued that if the delay is not condoned in filing the second appeal, grave injustice would be caused to the appellant. In support of his argument, the learned counsel for the appellant has relied upon the Apex Court judgment in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others [AIR 1987 Supreme Court, 1353]. The ratio of the judgment of the Apex Court cannot be disputed. The Apex Court had laid down six principles for dealing the application under Section 5 of the Limitation Act, as under:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to 3 be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. In the application for condonation of delay, the appellant has attributed the delay to non-seriousness of his counsel, who was conducting the appeal before the first appellate court. It appears that the appellant himself had not been serious to file the appeal in time. It is not the case of the appellant that he was not aware of the fate of the appeal (Civil Appeal No. 22 of 2006), which was dismissed by judgment and decree dated 5-11-2007. The appellant has not even said a single work as to when he obtained the certified copies of the documents from the first appellate court. Even no attempt has been made by the appellant to furnish general details of the lapse of two years. On the other hand, a perusal of the counter affidavit filed by the respondent goes to show that the appellant applied for the certified copy of the judgment and decree for the first time on 29-9-2009, which were prepared on the same day and received by the appellant on 30-9- 2009. The appellant has tried to take a lame stand that his counsel of the first appellate court was at fault. This explanation is not convincing because the appellant had not taken any steps to obtain certified copies of the judgment and other relevant documents earlier to 29-9-2009. A Division Bench of the Allahabad High Court in the case of State of U.P. and another Vs. Surendra Nath and others [1991, Allahabad Weekly Cases, Page 1423] after following the ratio of the Apex Court judgment has observed that the party which seeks condonation must also bear the burden of showing that despite all necessary steps being taken to file the appeal within time it failed due to cause beyond its control. There must be absence of negligence or inaction and also no lack of bona fide should be attributable to it. 4 After testing the case put forth by the appellant for condonation of delay in filing the appeal in the light of the law laid down by the Apex Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others [AIR 1987 Supreme Court, 1353] as well as the law laid down by the Allahabad High Court in the case of State of U.P. and another Vs. Surendra Nath and others [1991, Allahabad Weekly Cases, Page 1423], this Court is of the opinion that the appellant has utterly failed to show that he had made sincere efforts to file the appeal but failed due to the reasons beyond his control. Delay of about 2 years in filing the appeal has not been satisfactorily explained in the affidavit accompanying the application. The delay condonation application is liable to be dismissed. The delay condonation application (No. 10114 of 2009) is dismissed. Accordingly, the second appeal is dismissed being barred by limitation. (B.S.Verma,J.) RCP