Judgment:
Hemant Gupta, J.
1. The challenge in the present revision petition is to the order passed by the learned District Judge, on 6.8.1993 whereby delay of 45 days in filing of appeal was not condoned and consequently the application as well as the appeal, were dismissed.
2. The plaintiff filed a suit for declaration that he joined as a Junior Engineer on ad-hoc basis on 12.5.1967 and has worked as Junior Engineer till 10.4.1969, continuously without any break in service. The adhoc appointment of the plaintiff was regularised by the Haryana Public Service Commission and thus, the entire adhoc service rendered by the plaintiff is to be counted towards pay, leave and all other benefits.
3. Since the plaintiff was not given the benefit of adhoc service at the time of preparing the gradation list, he filed the present suit for declaration, which was decreed by the learned trial Court on 29.8.1992.
4. The appeal against the said judgment and decree was filed on 28.11.1992 along with an application for condonation of delay in filing the appeal. The reasoning for condonation of delay in filing of appeal was that the instructions to file the appeal were received in the Office of the District Attorney on 14.11.1992 and immediately thereafter, steps were taken to file the appeal, which has taken six days. Thus, it was prayed that the delay of 45 days in filing of appeal be condoned.
5. The learned District Judge found that the Government Pleader, who conducted the case before the trial Court has opined that the case was not fit for filing of the appeal. The Legal Rememberancer also opined that the case is not fit for filing of appeal on 29.9.1992. Therefore, the department has decided to file an appeal. Thus, it was found that since the limitation for filing of appeal was to expire on 7.10.1992, there is no explanation as to why the appeal was not filed within the period of limitation.
6. Once, the District Attorney and the Legal Remembrancer have opined that the case was not fit for filing of appeal, the department has rightly taken some time to decide whether the appeal should be filed or not.
7. It could not be pointed out that there was any mala-fide in not filing the appeal within the period of limitation. In construing the application for condonation of delay, the Hon'ble Supreme Court in N. Balakrishnan v. Krishnamurthy : 2008(228)ELT162(SC) , has held to the following effect:
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation.
In the present case, the defendants have explained the circumstances leading to delay in filing of appeal. None of the circumstances can be said to be dilatory or lacking in bona-fide.
8. In view of the above, the order passed by the learned District Judge, on 6.8.1993 is set aside. The delay of 45 days in filing of the appeal is condoned. The appeal is restored to its original number before the learned District Judge, Jind.
9. The parties through their No. 1 are directed to appear before the learned District Judge, Jind on 12.3.2007 for decision of the appeal on merits, in accordance with law.