^^- L::^:%%?s^^ c(> IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) SECONDAPPEAL No. ^<?T of201CBjpqis ,J^C v!''s's!i '^ Appellant/ Plaintiff \-^.^{ v-f'^, ^y^> ^* ....•:-:^fs^ ^'^'s\^'1 ^^"^' . ^ Respondent/ Defendant Dwarika Prasad aged about 58 years, S/o Sitaram caste Kahra, Occupation- Service, R/o Janjgir, Tahsil Janjgir, Distt: Janjgir-Champa (C.G.) VERSUS State of Chhattisgarh Through Secretary, Secondary Education Board, Raipur(C.G.) SECOND APPEAL UNDER SECTION 100 OF CIVIL PROCEDURE CODE HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON'BLE SHRI PRASHANT KUMAR MISHRA. J. SANo. 258 of 2010 APPELLANT Dwarika Prasad. Versus RESPONDENT State of Chhattisgarh. Shri H.V. Sharma, counsel for appellant. Shri Ssnjesv Agrawa!, Pans! Lawysr for fr.s Stats. ORAL ORDER (20/06/2011) Following oral order of the Court was Prashant Kumar Mishra. J. passed by Heard on I.A. No. 1 for condonation of delay in filing the appeal. (2) The appeal is barred by 896 days i.e. more than 2 years and 5 months. The explanation offered to seek condonation of delay is that after the judgment and decree was passed by the District Judge, Janjgir on 04/12/2007, the appellant was advised by his counsel to prefer a writ petition which he ultimately preferred and was registered as W.P.(C) No. 3658/2008. On finding that the writ petition is not maintainable, the writ petition was withdrawn on 21/07/2008, howeverthe counsel engaged bythe appellant did not informed him about the withdrawal of writ petition till August, 2010. As soon as the appellant was informed about the said order regarding withdrawal of writ petition, the present Second Appeal has been preferred. (3) On perusal of the application under Section 5 of the Limitation Act it would appear that the date of filing of writ petition has not been mentioned. The judgment and decree under challenge was passed on 04/12/2007, thus looking at the registration number of the writ petition, at the first instgnt there -^- appears inordinate delay in filing the writ petition itself. Moreover, no document or affidavit of the counsel or his Clerk who appeared in the writ petition has been annexed to substantiate the averment made in para 4 of the application that the appellant was informed about withdrawal of writ petition only in the month of August 2010. The insta. S second appeal has been filed on 17/08/2010, however in para 4 of the application the date of receipt of information has not been mentioned. (4) The appellant is a Government servant. His date of birth in the matriculation mark-sheet has been mentioned as 01/07/1951 whereas according to him, his actual date of birth is 01/07/1952, therefore, he preferred a suit against the Board of Secondary Education seeking a declaration that his actual date of birth is 01/07/1952 and the declaration be made to the said effect. (5) The suit has been preferred arraying the State of Chhattisgarh through the Secretary, Board of Secondary Education, Raipur. The description of defendant is not correct because the Board of Secondary Education is a statutory body created under the Madhyamik Shiksha Mandal Adhiniyam. The trial Court as well as the appellate Court have found that the suit is b^rred by limitation because the examination and the mark-sheet was issued in 1970whereas the suitwas preferred o" 21 August, 2000. (6) . There is inordinate delay in filing this second appeal. The contents of the application are not supported by any documentary evidence. Each days delay has not been explained in accordance with requirement of law. Consequently the apptication under Section 5 of Limitation Act is dismissed and as a consequence Second Appeal is also dismissed. _— Sd/- ^:r- "Mb--^ Mistea ^