HIRALAL SARMAN PRASAD Vs. AMARNATH BATRA

JUDGEMENT

(1.) DEFENDANT-APPELLANT has preferred this appeal against the judgment and decree passed by Shri S. P. Shrivastava, IInd Additional District judge, Gwalior; dated 8-2-1971, in Civil Appeal No. 28-A of 1970.

(2.) THE plaintiff respondent filed a suit for ejectment of the appellant, arrears of rent and mesne profits, in the Court of Fourth Civil Judge, II. Class, gwalior. By his judgment and decree dated 6-2-1970, the trial Court decreed the suit against the appellant. The appellant preferred an appeal in the District Court on 19-6-1970, and along with the memo of appeal, the appellant also submitted an application under section 5 of the Limitation Act, for condonation of the delay occasioned in filing the appeal. In that application, the prayer was made for the condonation of delay from 8-4-1970 to 15-4-1970 and also from 16-4-1970 to17-6-1970. The first appellate Court by the impugned order rejected the application filed under section 5 of the Limitation Act and held the appeal to be barred by limitation. Aggrieved by the said order, the appellant has preferred the present appeal

(3.) ACCORDING to the appellant-defendant, he paid Rs. 10. 25p. to one kailash, clerk to Shri Shyam. Bihari Advocate for obtaining the copy of the judgment and decree on the very day, the judgment was passed by the trial Court. The said Kailash, according to the appellant, did not present any application for obtaining the copies of the judgment and decree, but give a receipt of a different case to the appellant. The appellant further stated in his application under section 5 of the Limitation Act, that from time to time, he deposited rest of the amount for obtaining the copies of the judgment and decree, with the said cierk. At last, he received and obtained a copy on 7-4-1970, which he handed over to his counsel Shri Shyam Bihari Mishra on 7-4-1970. Shri Mishra, Advocate, is said to have perused those copies only on 15-4-1970 and found to his surprise that those copies do not relate to the case of the appellant. When the said Advocate of the appellant enquired from the Clerk, then the Clerk admitted to have obtained wrong copies. The clerk also admitted to the Advocate that he has not filed any application for obtaining the copies of the judgment and decree of the appellant's case. It was only on 16-4-1970 that the appellant made an application for obtaining the copies of the judgment and decree of this case. The copies of the judgment and decree were supplied to him on 17-6-1970. 18-6-1970 was a public holiday. Therefore, the appeal before the first appellate Court was filed on 19-6-1970.