PREM SINGH Vs. XIITH ADDL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition has been filed for issuing writ of certiorari quashing the order dated 20.7.2000, passed by XIIth Additional District Judge, Agra in Misc. Case No. 82 of 1990. Prem Singh v. Roshan Singh, by which the petitioner's application, filed under Section 5 of Limitation Act, for condoning the delay, in filing application under Order XLI, Rule 19 of the Code of Civil Procedure (hereinafter referred to as C.P.C.), has been rejected. The facts giving rise to this case are that it appears that an agreement was entered in between the petitioner and the respondent No. 3 for execution of sale deed of 1/3rd share in disputed plot No. 208, measuring about 1 bigha 4 biswa, khasra No. 209, area 6 bigha 1 biswa 10 biswansi, total 7 bigha 7 biswa 10 biswansi for consideration of Rs. 35.000.00, out of which Rs. 10,000.00 was alleged to have been paid as an earnest money. However, the sale deed was not executed, in the time, stipulated in the agreement, therefore, the defendant-respondent No. 3 had filed Original Suit No. 328 of 1988 for Specific Performance of Contract to execute the sale deed. The suit was decreed on 20.7.1990.

(2.) Aggrieved by the aforesaid judgment, the defendant-petitioner filed appeal before this Court. Thereafter, because of change of pecuniary jurisdiction, the aforesaid appeal was transferred before the court below. After transfer on 30.8.1996, a notice was issued by the court below to the appellant, fixing 31.10.1996. On 31.10.1996, it appears, another date was fixed. The appellant did not appear and the case was adjourned for 15.2.1998. Thereafter, it was again adjourned for 29.3.1998. On 29.3; 1998, the counsel, who was appearing in the suit, was informed by the court concerned to appear in the court. Pursuant thereto, he appeared before the court below and made an endorsement on the order-sheet that appellant is not responding, hence notice be issued to the appellant. The court below, taking the service of notice on the appellant sufficient through counsel, on 8.7.1997 dismissed the appeal for want of prosecution.

(3.) It appears that an application was filed by the appellant thereafter, under Order XLI, Rule 19, C.P.C., to re-admit the appeal alongwith an application for condonation of delay. In the application it was stated that, at no point of time, the petitioner/ appellant was informed about the transfer of the appeal before the court below and the date fixed in the matter, and he came to know about the same only on 9.4.1999 when he had taken a copy of khatauni from the Lekh pal. It is also stated that since 9.4.1999 to 14.4.1999 the appellant was busy in filing objection in execution case of the suit property, therefore, could not file the aforesaid application.