VIDYAWATI Vs. ASSISTANT COMMISSIONER AND LAND ACQUISITION OFFICER

JUDGEMENT

(1.) The appellants herein are land losers, who had approached the Court of Principal District Judge at Bidar under Section 54 of the Land Acquisition Act in Miscellaneous Appeal No.23/2012, seeking enhancement of compensation. The said miscellaneous appeal came to be dismissed on 04.01.2017 for nonpayment of Deficit Court Fee. Subsequently, the appellants filed Civil Miscellaneous No.35/2017 on 21.04.2017 under Order XLI Rule 19 read with Section 151 of CPC and Section 54 of the Land Acquisition Act along with I.A. under Section 5 of the Limitation Act, seeking restoration of Misc. Appeal No.23/2012. There was delay of 57 days in filing the Misc. Petition for restoration. Notice was issued to the respondent- Government on the said Misc. Petition. The respondent- Government filed its objection contending that delay is not properly explained and prayed for dismissal of the petition. The I.A. filed under Section 5 of the Limitation Act in Civil Misc. No.35/2017 came to be dismissed by order dated 26.07.2018 on the ground that the petitioners have failed to explain satisfactorily about every day's delay much less 57 days delay caused in filing the petition. Challenging the said order passed on I.A. filed under Section 5 of the Limitation Act, the appellants are before this Court in this appeal.

(2.) Heard the learned counsel for the appellants and the learned High Court Government Pleader appearing for the respondents.

(3.) The learned counsel for the appellants submits that the dismissal of application filed under Section 5 of the Limitation Act would amount to dismissal of the appeal itself. Therefore, filed the present appeal. Further, he submits that the delay of 57 days is explained in the Misc. Petition stating that the appellants applied for the certified copies on 02.02.2017 and the same was made available to them on 22.07.2017. Initially, they were under the impression that the appeal would lie to the High Court and when the counsel at Kalaburagi advised that the petitioner will have to file Misc. Petition under Order XLI Rule 19 of CPC, they filed petition under Order XLI Rule 19 of CPC along with application under Section 5 of the Limitation Act which caused 57 days in filing the Misc. Petition.