TARAI KALA SANGAM Vs. SAMBHU PRASAD JOSHI

JUDGEMENT

(1.) The present appeal from order has been filed by the appellant challenging the order dtd. 1/5/2019 passed by the First Additional District Judge, Udham Singh Nagar dismissing the application of the appellant under Sec. 5 of the Limitation Act, which was filed along with an application under Order XLI Rule 19 of CPC for readmission of the appeal. The lower appellate court did not find sufficient grounds for condonation of delay of more than one year.

(2.) The present appellant was the defendant in a suit filed by the plaintiffs/respondent nos. 1 and 2 herein, which was filed for injunction before the court below. In the said suit, a counterclaim was also made regarding the same land by the present appellant. The suit was decreed on 27/4/2009 and the counterclaim of the appellant was dismissed. Against the decree, the present appellant preferred an appeal before the learned District Judge, Udham Singh Nagar, which was assigned to the First Additional District Judge, Udham Singh Nagar where it was dismissed for non-prosecution on 28/7/2014.

(3.) According to the appellant, he was not informed by his lawyer about this dismissal, and as soon as he got the information, he promptly moved an application under Order XLI Rule 19 of CPC (for readmission of appeal), along with the delay condonation application annexing all the relevant documents, such as medical certificate, etc. However, this did not find favour with the lower appellate court and the application of the appellant has been dismissed vide order dtd. 1/5/2019. Aggrieved, the appellant has filed the present appeal before this Court under Order XLIII Rule 1 (t) of CPC before this Court.