SUMITRA DEVI Vs. RAMESHWAR DAYAL

JUDGEMENT

(1.) This is defendant's second appeal. She failed in a suit for pre-emption filed by the respondents-plaintiffs in the trial court as well as in the first appellate court.

(2.) It is unnecessary to give the facts in detail suffice to note that plaintiffs, the three brothers, as co-sharers filed a suit for possession by way of pre-emption in respect of l/4th share of house No. 2256 (old)/4529-30 (new) Daiwara, Nai Sarak, Delhi, which was purchased by the defendant by a sale deed which is dated 8th January, 1969. The suit was filed on 6th January, 1970. The whole of this house belonged to four brothers. Three of them by different also deeds dated 16th August, 1967, 26th August, 1967 and 13th February, 1969 sold their respective shares to the three plaintiffs who, as noted above, are again brothers. The fourth brother of the original owners sold his l/4th share to the defendant for a consideration of Rs. 8000.00 . This led to the filing of the present suit. On pleadings of the parties the trial court framed the following issues :

(3.) This second appeal was filed on 14th Jaunary, 1974. The appeal was returned with the objection that the court fee was deficient by 75 paise. When this deficiency was made good at that time the Registry raised an objection that the appeal had become barred by limitation. The defendantappellant, therefore, filed an application under Section 5 of the Limitation Act, it being C.M. No. 213/74. There has been no opposition to this application. In the circumstances also I find there is sufficient cause for the condonation of delay. The application is, therefore allowed. Then a second application under Section 5 of the Limitation Act was also filed by the appellant, it being C.M. No. 688/74 It was on the ground that certified copy of the judgment of the trial court could not be filed in time though when the appeal was a true copy of the judgment was filed along with the appeal which also bore a court fee stamp of Rs. 2.00 . Not only that certified copy was filed late but it was pointed out during the course of arguments that it did not bear any court fee of Rs. 1.25 as required under the law. Mr. Aggarwal said that the court fee stamp affixed on the true copy should be taken to have been affixed on the certified copy. This argument was countered by Mr. Gupta, learned conusel for the respondents, and he said that the certified copy should have been separately stamped with requisite court fee. In support of his contention be referred to a decision of this court in Sh. Phalwant Singh v. Sh. Jai Naraln Tripathi (1980 (2) RLR 3U3). I need not, however, resolve the controversy on this point. I find that this appeal has been pending for the last 15 years and it would be much unrealistic to dismiss the same on the ground that the certified copy did not bear the court fee stamp. I would, therefore, not only condone the delay in filing the certified copy of the judgment but permit the appellant to affix the requisite court fee on it. This application C.M. 68S/74 thus also stands allowed.