1 S.B. Civil Second Appeal No. 325/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil Second Appeal No. 325/2009 Jaipur Vidyut Vitran Nigam Limited & Others Versus Bhagwan Dass. Date of Judgment: 16.11.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. S.S. Shekhawat, for the appellants. Mr. J.P. Goyal, for the respondent. Heard learned counsel for the parties. 2. Following substantial question of law arises in this second appeal for consideration:- “Whether learned first appellate court committed an illegality in dismissing the first appeal of the appellants on the ground of delay of 10-11 days and in not condoning the delay in the facts and circumstances of the present case?” 3. Learned counsel for both the parties submitted that the appeal may be heard and disposed off finally at this stage. Request of 2 S.B. Civil Second Appeal No. 325/2009 learned counsel for the parties is allowed and the appeal is being heard and disposed off finally at this stage. 4. Briefly stated the facts of second appeal are that plaintiff-respondent filed a suit for cancellation of Vigilance Committee Report No. 3365/48 dated 10.10.2006 and for refund of Rs. 50,000/-, wrongly recovered by defendants-appellants. Defendants-appellants filed their written statement. Trial court framed four issues, which are reproduced in the judgment of trial court. Both the parties led oral and documentary evidence. Trial court vide its judgment dated 17.10.2008 and decree dated 31.10.2008 decreed the suit of the plaintiff and declared the Vigilance Committee Report dated 10.10.2006 as illegal and void and passed a decree of recovery of Rs. 50,000/- alongwih interest @ 6% per annum in favour of the plaintiff. 5. Being aggrieved with the same, defendants-appellants preferred an appeal before District Judge, Dholpur. There was delay in filing the appeal, therefore, an application under Section 5 of the Limitation Act was also filed. Learned District Judge, Dholpur vide its 3 S.B. Civil Second Appeal No. 325/2009 order dated 05.01.2009 dismissed the application of the appellants under Section 5 of the Limitation Act and consequently dismissed regular appeal at admission stage itself being barred by limitation. 6. Being aggrieved with the said order, the defendants-appellants have preferred this second appeal. 7. Submission of learned counsel for the appellants is that there was delay of 10-11 days in filing first appeal, as mentioned by first appellate court also in the impugned order, which was explained by the appellants properly in the application under Section 5 of the Limitation Act, therefore, delay ought to have been condoned. The first appellate court committed an illegality in dismissing the application under Section 5 of the Limitation Act as well as appeal also. Therefore, impugned order passed by first appellate court may be set aside and appeal may be remanded back to first appellate court to decide the same on merits. 8. Per contra, learned counsel for the respondent submitted that reason given by the appellants for condonation of delay was not 4 S.B. Civil Second Appeal No. 325/2009 sufficient to condone the delay, therefore, no illegality has been committed by first appellate court in dismissing the application under Section 5 of the Limitation Act filed by the appellants. 9. I have considered the submissions of learned counsel for the parties. 10. From impugned order it appears that judgment was passed by trial court on 17.10.2008 and decree was prepared on 31.10.2008 and certified copy of judgment was made available to the appellants on 06.11.2008. Limitation for filing the appeal is 30 days, therefore, last date for filing the appeal before first appellate court was 06.12.2008, whereas appeal before the first appellate court was filed on 17.12.2008, therefore, there was a delay of 11 days in filing the appeal. Appellants explained the delay by mentioning that expenses to be incurred in filing the appeal was not sanctioned in time and officer-in-charge was busy in some other Government work, therefore, delay in filing the appeal was bonafide and was not deliberate. Appellant-Company is a Government Company and officer-in-charge does not proceed unless amount to be incurred in the case is 5 S.B. Civil Second Appeal No. 325/2009 sanctioned and sometimes he gets more important Government work, therefore, the delay of 11 days in the facts and circumstances of the present case cannot be said to be deliberate, but the same ought to have been treated as bonafide. 11. In these circumstances, I am satisfied that there was sufficient cause for condonation of delay of 11 days in filing the first appeal and order passed by learned first appellate court cannot be allowed to be sustained. 12. In view of above discussions and reasons, the question of law formulated above is answered in favour of the appellants. 13. Consequently, second appeal is allowed. Impugned order dated 05.01.2009 passed by District Judge, Dholpur is set aside and the case is remanded back to the Court of District Judge, Dholpur with a direction to decide the Regular First Appeal No. 4/2009 afresh on merits in accordance with law. There will be no order as to costs. 14. Both the parties are directed to appear before District Judge, Dholpur on 07.12.2010. District Judge, Dholpur is directed to decide the appeal as soon as possible, but not later 6 S.B. Civil Second Appeal No. 325/2009 than the period of four months from the date of receipt of copy of this order. 15. Registry is directed to send a copy of this order to District Judge, Dholpur for information and compliance. (Narendra Kumar Jain),J. Manoj, Item No.S.18.