STATE OF U P Vs. MAHENDRA PRATAP PITAMAH

JUDGEMENT

(1.) This is a special appeal by the State Government and the Director of Elections against a decision of a learned single Judge of this Court quashing under Article 226 of the Constitution the election of the Chairman and members of the Town Area of Kerakat. The judgment appealed against was delivered on 22-4-1955. A decree was prepared by the office. An application for a copy of the decree was made on 13-5-1955. The copy was ready for de-livery on 22-8-1955. The delivery was actually taken by the appellant on 24-8-1955. The memorandum of appeal was presented on 23-9-1955. The question that has arisen before us is whether the memorandum of appeal wag presented with-in time. The period prescribed for preferring a special appeal by Rule 10 of Chapter IX of the Rules of Court Vol. I is 60 days.

(2.) It may be pointed out at this stage that the appellants have, by way of precaution, made an application for condonation of delay also under Section 5, Limitation Act but that application is not before us today. The learned counsel contends that the appeal is within time and seeks a decision on that issue.

(3.) On 25-1-1956 also this case was listed before us, and after hearing the learned counsel for the appellants only we held that it was within time. It now appears that the learned counsel for the respondents had put in appearance before that day but his name was not printed in the list. The result was that he did not notice the case and the hearing was ex parte. He made a grievance of the fact that the order was passed without hearing him. We, therefore, set aside the order & gave him an opportunity of being heard. We have now heard both sides and we have to determine the question mentioned above.