NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1159 OF 2009 (Arising out of SLP(C) NO.4924 of 2009)

                                                         ( CC:1581 of  2009)

The State of Bihar & Ors.                                       ………….. Appellants

Versus

Arjun Prasad Rajak                                                 …………..Respondent

J U D G M E N T

H.L. Dattu, J.

Delay condoned.

Leave granted.

1) Challenging  the  judgment  and  order  passed  by  the  High  Court  of

Judicature at Patna in L.P.A. No. 690 of 2008 dated 15th September, 2008,

the State of Bihar has filed this civil appeal. By the impugned judgment, the

High Court has declined to condone the delay in filing the Letters Patent

Appeal and, consequently, has rejected the appeal.

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2) In filing the appeal, there was a delay of one year and eighteen days.

Alongwith the appeal, an application under Section 5 of the Limitation Act

had been filed  to  condone the  delay in  filing  the appeal,  if  any.   In  the

affidavit filed alongwith the application, the delay in filing the appeal had

been explained.  The High Court is of the view that the explanation offered

in filing the appeal belatedly, is not satisfactorily explained.  Accordingly, it

has declined to entertain the appeal.  Yet, again has also found that there is

no merit in the appeal.   

3) We have heard learned counsel for the parties to the lis.  

4) We have carefully perused the order passed by the High Court and the

explanation offered by the appellants in the affidavit filed for condonation

of delay in filing the appeal belatedly.  In the facts and circumstances of the

case, we are of the opinion, the High Court should have condoned the delay

in  filing  the  appeal  and  should  have  decided  the  appeal  on  merits.

Furthermore, this Court  has consistently held, that,  if,  for the reason, the

appeal is dismissed on the ground of delay, the court need not express its

opinion on the merits of the appeal.   In the instant  case, the High Court

while  declining  to  entertain  the appeal  on  the  ground  of  delay,  has  also

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made passing observation on the merits of the appeal, which, in our opinion

ought not to have been done by the High Court.   

5) In the aforesaid view of the matter, we cannot sustain the impugned

order.  

6) In the result, the appeal is allowed, the impugned order passed by the

High Court is set aside.  We condone the delay in filing the Letters Patent

Appeal subject to the appellants paying cost of Rs. 5,000/- to the respondent

within six  weeks  from today.   We request  the  High  Court  to  decide the

Letters  Patent  Appeal  on  merits  as  expeditiously  as  possible  at  any rate

within six months from the date of receipt of copy of this Court’s order.  

                                                                                   …………………………………J.                                                                                      [ TARUN CHATTERJEE ]

                                                                                   …………………………………J.                                                                                      [ H.L. DATTU ] New Delhi, February 23, 2009.

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