FLORANCE Vs. MOHAN DAS

JUDGEMENT

(1.) THE C.M.Application is filed seeking condonation of delay of 2211 days in filing the appeal. THE petitioner, who was arrayed as the second defendant in the suit from which this appeal arises, pleads that at the relevant time, she was residing in Bangalore and had no idea whatsoever about the proceedings in the court below. She refuted having received the process from the court below. In the plaintiff's counter affidavit to this C.M.Application, it is stated that the second defendant had engaged different Advocates even after the earlier engagements were relinquished by Advocates who had appeared in the first instance. With this, we thought it appropriate to summon the records from the court below, more particularly because the appellant had filed interlocutory application seeking that the certified copies of the Vakalath Namas shown to have been filed before the court below may be called for.

(2.) ON the basis of the submissions made on the merits of the matter, having regard to the enormous delay and having had a look at the LCR, we thought it fit to ask the petitioner to appear before us. She has appeared. The plaintiff is also present. The identity of the second defendant is not disputed. To exclude any controversy on the genuineness of Ext.A7, we obtained the left thump impressions, signatures and handwriting of the appellant taken in the presence of the Registrar (Judicial) of this Court under our order. After that, we spoke to the appellant. She says that she had executed Ext.A7 but she and her learned counsel points out that her defence is that Ext.A7 was executed for a different reason and was in favour of a money lender. We are not going to the merits of those submissions in the light of the procedure being adopted by us.

(3.) IN the light of what is aforesaid, learned counsel for the appellant seeks leave to withdraw this C.M. Application and the appeal. The request is granted. The C.M. Application and appeal are dismissed as withdrawn without entering on merits and without prejudice to the right, if any, of the appellant to seek remedy under Rule 9, Rule 13 and Section 5 of the Limitation Act through the court below. Obviously, the court below will take into consideration the time taken by the appellant in prosecuting this matter before this Court in the light of Section 14 of the Limitation Act. IN view of this withdrawal, the appellant is entitled to refund of the entire court fee paid on this appeal. The court fee paid on this appeal is ordered to be refunded.