IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.145 of 2010 SUNIL PRASAD Versus THE STATE OF BIHAR & ORS ----------- 2 28.01.2010 I.A.No. 741 of 2010: Heard learned counsel for the appellant and learned counsel for the State of Bihar in respect of I.A.No. 741 of 2010 filed under Section 5 of the Limitation Act. According to stamp report, there is a delay of 1 year and 264 days in preferring this Letters Patent Appeal. As per averments made in Para-4 of the I.A., since the writ petition was dismissed on a day when the counsel for the petitioner could not appear in the case, a stand has been taken by the appellant or his counsel that they did not know about the dismissal of the writ petition by the order under appeal dated 3rd March 2008 and only after filing a slip before the joint Registrar (List & Computer) on 3rd December 2009, a report was provided as contained in Annexure-A disclosing that the case had already been dismissed on 3rd March 2008. Thereafter memorandum of appeal was filed allegedly without any delay on 27th January 2010. Learned counsel for he State has pointed out that the aforesaid explanation in the I.A. is in teeth of admission made by the appellant in Para-3 of the Memo of appeal wherein it has been admitted that the writ petitioner enquired the matter by filing a slip before the Joint Registrar of the Court on 11th August 2008 and came to know about the dismissal order dated 3rd March 2008. 2 Thereafter there is further averment that the counsel applied for certified copy on 20th August 2008 and the copy was delivered on 26th August 2008. Thereafter counsel informed the petitioner for filing this appeal. The facts pointed out by the learned counsel for the State clearly disentitle the appellant to seek condonation of delay on the basis of facts stated in the I.A. Petition filed under Section 5 of the Limitation Act. Hence, the prayer made for condonation of delay is rejected. However, it is made clear that the writ court has already observed in the order under appeal that the writ petitioner has alternative remedy of getting TDS amounting to Rs.71,371/- by making prayer before the authorities under the income Tax Act. In that view of the matter, the appellant would be entitled to seek his remedy before the authorities under the Income Tax Act. The L.P.A. stands dismissed as barred by limitation. Jay/ ( Shiva Kirti Singh,J) ( C.M.Prasad,J )