RAM BRIKSH SINGH Vs. AMJAD

JUDGEMENT

(1.) By means of this instant appeal, the appellants have challenged the judgment and order dated 4.3.1989 passed by the Ist Additional District Judge, Ghazipur in Misc. Case No. 9 of 1988 Arising out of Civil Appeal No. 339 of 1987, Ram Briksh Singh v. Amjad. An interim order dated 2.5.1989 was passed by this Court when this appeal was admitted.

(2.) By the impugned order, the application under Section 5 of the Limitation Act filed along with restoration application has been rejected by the court below. A perusal of the. impugned order indicates that the appeal of the appellant was dismissed for default with costs on 1.7.1988. The application for restoration along with Section 5 application supported with affidavit was made by the appellant on 4.8.1988. Consequently there was delay of four days in making the application. A copy of the application under Section 5 of Limitation Act supporting affidavit dated 4.8.1988 has been filed as Annexures-1 and 2 in this appeal along with stay application. A perusal of the aforesaid affidavit indicates that the appellant was taken suddenly ill on 1.7.1988 due to which he could not be present when the appeal was called out.

(3.) In the application under Section 5 of the Limitation Act, the appellant had stated that the appellant No. 3 is in service outside. The appellant No. 2 is an illiterate person and does not do pairvi of the appeal. The appellant No. 1 is teacher in Jangipur Inter College. It has further been stated that after 1.7.1988, when the appellant recovered from his ailment he went to the Court but found that the Court employees were on strike and the work of the Court had been paralyzed. The appellant states that when he came to know that the strike of the Court employees has been called off, he applied for leave from his college and came to the Court on 4.8.1988 and filed the application for restoration as well as under Section 5 Limitation Act.