ANOKHILAL Vs. BHERUSINGH

JUDGEMENT

(1.) APPLICANT -defendant has filed this revision against dismissal of his first appeal No. 31 -A/99 by the 1st A.D.J. Shajapur, vide order dated 4.7.2000 as barred by limitation and has also dismissed the application for condonation of delay as no sufficient ground is made out.

(2.) THE appeal, which was preferred before the learned lower appellate Court was barred by limitation for 35 days. The applicant -defendant filed an application under section 5 of the Limitation Act for condonation of delay. His submission in the application was that in a suit No. 19A/98 judgment and decree was granted against the non -applicant Bheru Singh on 6.5.1999. It was submitted on behalf of the applicant before the lower appellate Court that he received certified copy of the judgment and decree on 19.5.1999 and the Courts were closed w.e.f. 17.5.1999 to 18.6.1999 and 19th and 20th June were holidays, therefore, the appeal was to be preferred on 21.6.1999, but from 18.6.1999 to 25.7.1999 the applicant -defendant became ill and was suffering from jaundice, therefore, he could not file the appeal and when the appeal was filed it was barred by limitation for 35 days. In support of this contention the applicant produced medical certificate (Ex. A -1) issued by Dr. N.K. Bhaosar and Dr. Bhaosar was also examined.

(3.) IT has also come in the evidence of Anokhilal, who is the Secretary of one Milk Producing Cooperative Society, that he had issued cheques and withdrew payment from Bank on 18.6.1999, 25.6.1999, 2.7.1999, 9.7.1999 and 23.7.1999. DW 1 Suresh Kumar, who is Assistant Accountant in the Central Cooperative Bank, was examined and he stated that he had made the payments to the person in whose name the cheques were issued and who had signed on back of the cheques. He states that the payment of all the cheques was made to applicant Anokhilal and it is wrong to say that on those dates he had not come to the Bank. On the basis of aforesaid evidence the trial Court recorded a finding that the ground of illness has not been found proved and the applicant was not ill, as he had gone to Bank to withdraw payment and he has also not produced any other document of treatment, purchase of medicines etc. and dismissed the application under section 5 of the Limitation Act, as the ground of illness, in the aforesaid facts and circumstances has been found false against which the applicant has filed this Civil Revision. The lower appellate Court has also observed that the evidence of Anokhilal is absolutely false and concocted, therefore, action under section 340 CrPC was also proposed against him.