HOLYA LASHA MAHALE Vs. RAGHUNATH HOLYA MAHALE

JUDGEMENT

(1.) Heard. Rule returnable forthwith with the consent of both parties.

(2.) The petitioner is the original defendant from Regular Civil Suit No. 8 of 1997 decided by the Civil Judge, Junior Division, Satana, District Nashik on october 23, 2002. It was an ex parte decree passed against the present petitioner. Being aggrieved by the said ex parte decree, the petitioners preferred an appeal. However, the said appeal was delayed by 529 days. Therefore, Civil miscellaneous Application bearing No. 29 of 2004 was taken out by the petitioner for condonation of delay. The said application is dismissed by the IIIrd ad-hoc Additional District Judge, Malegaon by judgment and order dated July 16, 2005, since according to the First Appellate Court there are no sufficient grounds to condone the delay.

(3.) Both counsel have admitted that the impugned judgment was passed by the First Appellate Court on the basis of averments of the respective parties as reflected in the delay condonation application and reply to the said delay condonation application. Learned counsel for the petitioner states that no opportunity to lead oral evidence was given to the petitioner. He further submitted that the Court has also not passed the order under Order XIX, Rule 1 of the Code of Civil Procedure, 1908 to prove a particular fact involved in the delay condonation application by filing an affidavit. Thus, the grievance made by the learned counsel for the petitioners is that unless and until the First Appellate court had passed an order under Order XIX, Rule 1 of the Civil Procedure Code allowing the party to lead the evidence by way of affidavit, the Court could not have proceeded with the disposal of the matter on merits insofar as the condonation of delay is concerned.