MUNICIPAL COUNCIL, ASHOKNAGAR Vs. ANANDPUR TRUST

JUDGEMENT

(1.) THIS is a petition field by the defendant before the trial Court and appellant before the lower appellate Court, feeling aggrieved by the order of the appellate Court dismissing his appeal as barred by time consequent to rejection of its application u/s. 5 of the Limitation Act.

(2.) 1993 MPLJ 738) apart from host of several other decisions having binding efficacy on this Court. We have unhesitatingly formed opinion that if only the appellate Court would have kept in view the legal principles so laid down, in all probability its finding would not have been what it is. We are not inclined to re -appreciate the findings of fact and substitute our own in place of the appellate Court's findings, but nevertheless we are satisfied that this is a fit case where we must set aside the impugned order directing a re -hearing by the appellate Court.

(3.) THOUGH the learned counsel for the respondent No.1 has brought on record a document (Annex. R/1) to contend that the facts stated by the petitioner in the application u/s. 5 of the Limitation Act were not correct but we have chosen not to consider the document Annex. R/1 at this stage because it was not filed before the Court below. Inasmuch as the matter is being sent back, the plaintiff/respondent No.1 shall be at liberty to seek its production on record before the lower appellate Court.