CHAINSINGH Vs. LALJI

JUDGEMENT

(1.) SHRI Kutumble, learned counsel for the appellant submitted that the delay has been caused because of the fraud played by the clerk of the advocate Zamil Ahmed, who has explained the delay by giving evidence on oath in the Court. On account of that, Shri Kutumble submits that the delay needs to be condoned. He pointed that when the first appeal was filed in the District Court, present appellant was minor and, therefore, he is entitled to file the second appeal after attaining majority. He argued further that keeping in view that the appellant was minor when the delay has caused, the said delay needs to be condoned. This is the sum and substance of the arguments advanced on behalf of the appellant by Shri Kutumble.

(2.) SHRI Chajed, appearing for Resp. No.3, vehemently submitted that second appeal is not maintainable at all. He placed reliance on the judgment of this Court in the matter of Ajit Singh v. Bhagwanlal reported in 1989 MPLJ -6. Shri Chajed submitted that for the reasons best known to the appellant, the said clerk of Zamil advocate has not been examined. He pointed towards the cross examination of ZamB Ahmed advocate and submitted that the reasons given for explaining the delay are vague and not sufficient. He submitted that this appeal be dismissed as not maintainable.

(3.) SO far as the evidence adduced by the side of appellant in respect of circumstance explaining delay is concerned, the evidence suffers from infirmities which have been rightly pointed by the 1st Appellate Court in the judgment. Learned advocate did not produce his diary wherein dates of appearance in the Court have been mentioned. He was unable to tell as what was the amount given to him by Pratapsingh for the purpose of court fees, expenses of typing, etc. and the Advocate fee. The application, submitted by Zamil Ahmed to the District Judge for the purpose of cancellation of licence, has not been also produced.