CHHOGALAL Vs. HUSAIN BAI

JUDGEMENT

(1.) HAVING heard learned Counsel tor the parties and having perused record of the case, I am inclined to allow this revision and set aside the impugned order dated 28-3-2003, passed by IVth Additional District Judge, Dewas, in Miscellaneous Civil Appeal No. 31 of 2000, which in turn arises out of Civil Suit No. 47-A of 1998, decided by IIIrd Civil Judge, Class I, Dewas, on 30-6-1999.

(2.) THIS is a civil revision preferred by defendant against the judgment/decree passed by learned First Appellate Court, whereby her first appeal filed under Section 96 of CPC against the judgment/decree passed by the Trial Court was dismissed on the ground of limitation. In other words, the appeal preferred by the petitioner/defendant before the First Appellate Court was filed 45 days late and therefore, the appellant moved an application for condoning the delay under Section 5 of Limitation Act. It is this application, which was dismissed by the learned First Appellate Court holding that it docs not disclose any sufficient cause within the meaning of Section 5 of Limitation Act and hence, application made under Section 5 of the Limitation Act is rejected. As a consequence, the appeal was also dismissed as barred by limitation.

(3.) SINCE, the dismissal of the first appeal was on the point of limitation only, the learned First Appellate Court did not examine the merits and demerits of the controversy involved in the appeal. Indeed, there was no occasion for the First Appellate Court to have gone into the merits or demerits of the appeal, once the same was dismissed on the ground of limitation. It is against this order, the petitioner (defendant) has come up in this revision.