ASHARAM Vs. GANGABAI

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 5-9-1992, passed by the First Additional District Judge to the Court of District Judge, Raisen in M. J. C. No. 10/91, by which an appeal filed by the appellants/defendants was dismissed by dismissing the application filed under Section 5 of the Limitation Act for condonation of the delay in filing the appeal. Resultantly, the judgment and decree dated 3-4-1991, passed by Civil Judge, Class-II, Raisen in Civil Original Suit No. 54-A/95 has been upheld in favour of the respondent Nos. 1 and 2, appellants have preferred this appeal under Section 100, Civil Procedure Code.

(2.) FACTS giving rise to this appeal are that the predecessor of the respondent Nos. 1 and 2 has filed a Civil Suit for perpetual injunction against the present appellants and also by impleading the respondent No. 3 as formal defendant. Such suit was decreed by the Trial Court. Subsequent to it, the appeal was not preferred within the limitation the same was preferred after delay of more than two months alongwith an application under Section 5 of the Limitation Act for condoning the delay in filing the same. That application was also supported by an affidavit. As per averments of it, the appellant No. 4 Ram Gopal was looking after the affairs of the litigation. Lastly he was given assurance by the Advocate on 16-2-91 that their presence are not required thus they did not come to the Court, Meanwhile, the case was decided by the Trial Court against them but appellants were not informed by the Counsel, on dated 20-6-1991, when respondent Nos. 1 and 2 alongwith some other persons had come to the disputed land for cultivating then they came to know about the said judgment and decree. Immediately they rushed to the Advocate and on 21-6-1991 an application for certified copies of the judgment and decree was filed and the copy of judgment was delivered on 28-6-1991 while the copy of decree was delivered on 10-7-1991 subsequent to it on 11-7-1991 appeal was preferred in the District Court. With this explanation and sufficient cause they had prayed for condonation of the delay.

(3.) BY filing the reply on behalf of respondent Nos. 1 and 2, the averments made by the appellants were denied. It is also stated that no sufficient cause is made out and whatever cause has been mentioned that is not bonafide and looking to gross negligence on the part of the appellants such delay could not be condoned and prayed for dismissal of the application as well as the appeal as barred by time.