LALA Vs. RAJABABU

JUDGEMENT

(1.) Rule returnable forthwith. Heard by consent of parties. The Civil Revision is directed against the order dated 20th April, 1995 passed by the II Additional District Judge, Nagpur dismissing the application for condonation of delay involved in filing of the appeal by the present applicant challenging the judgment and decree dated 16.1.1993 passed by the 4th Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No. 1012 of 1992.

(2.) The facts giving rise to the instant revision in short are that, Regular Civil Suit No. 1012 of 1992 was filed by the non-applicant plaintiffs against the present applicant for declaration, possession and permanent injunction and for damages. The suit came to be decreed on 16.1.1993. The present applicant-defendant preferred an appeal there against on 2.9.1993 along with application for condonation of delay. It is this application which has been rejected by the order under challenge in the instant revision application and hence this revision.

(3.) It is contended by Mr. Ahmed, learned Counsel for the applicant, that having regard to the circumstances narrated in the application for condonation of delay, the belated filing of the appeal ought to have been held by the learned Additional District Judge on account of sufficient cause for the same and the contrary conclusion arrived at in that behalf is not warranted at all by the facts and circumstances of the case. The learned Counsel for the applicant further submitted that the learned Additional District Judge allowed himself to be swayed by the fact that written statement was not filed by the applicant in the suit and further he allowed himself to be swayed in inferring about latches on the part of the applicant in not giving instructions to the Counsel which, according to the learned Additional District Judge, resulted into non-filing of the written statement. In the submission of the learned Counsel for the applicant, all that which had happened prior to the decision in the suit decreed on 16.1.1993 could not have at all been taken into consideration by the learned Additional District Judge while deciding the instant application seeking condonation of delay, inasmuch as those facts could not be relevant much less were not in issue also while deciding the application for condonation of delay filed by the applicant. If the discretion exercised is with such erroneous approach, in the submission of the learned Counsel for the applicant, the order impugned has to be treated as vitiated by apparent error and, therefore, needs to be interfered within revisional jurisdiction.