IKBAL AHMAD ANSARI Vs. MATLOOB HASAN AND ORS.

JUDGEMENT

(1.) BY means of present Appeal from Order, the appellants seek to set aside the judgments and orders dated 22.10.2005 and 05.07.2008 passed by Addl. District Judge/1st FTC, Roorkee, District Haridwar in Civil Appeal No. 2/2001, Ikbal Ahmad v. Matloob Hasan & others and in Misc. Case No. 53/2005 Ikbal Ahmad v. Matloob Hasan & others and further to re -admit the aforesaid Civil Appeal.

(2.) THE question, which arises for consideration of this Court, in the instant case is - whether an application for condoning delay under Section 5 of the Limitation Act, 1963 is a must or not? Further, whether in the absence of prayer for condoning delay, such delay may be condoned or not? It is an admitted case here that there was a delay of one day on behalf of the defendant -appellant in moving an application for setting aside the dismissal of appeal. The defendant (appellant herein) was the appellant before the first appellate court and, in his absence, a regular civil appeal was dismissed. The suit was decreed in favour of the plaintiff by the trial court. Aggrieved against the same, the defendant filed a civil appeal, which, as stated above, was dismissed in his default. He moved an application for setting aside the dismissal of appeal, but there was a delay of one day in moving such application. Although, he had stated in the application that he was suffering from diabetes and, therefore, he could not move such application in time, but there was no averment in the application for re -admission that one day's delay in filing the re -admission application be condoned. The first appellate court, therefore, held that in the absence of application under Section 5 of the Limitation Act, his appeal could not be readmitted. Reliance is placed upon a decision of Hon'ble Supreme Court in Ragho Singh v. Mohan Singh & others, : 2001 (9) SCC 717, wherein it was observed:

(3.) IT will be apt to reproduce paras 16, 17 & 18 of a decision rendered by Hon'ble Supreme Court in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, : (2003) 7 SCC 66: