JAYENDRA RAO Vs. OMPRAKASH

JUDGEMENT

(1.) HEARD on admission. This civil revision under section 115 of the Code of Civil Procedure is filed against the order dated 17.8.2006 passed by Xlth Additional District Judge (Fast Track Court), Gwalior, in Civil Appeal No. 39-A/2006 whereby delay in filing the appeal has been condoned and an application under section 5 of Limitation Act has been accepted.

(2.) BEING aggrieved by eviction ordered by the trial Court non-applicant filed civil appeal before the appellate Court on 20th April, 2006 challenging the judgment and decree dated 28.8.2006 passed in Civil Case No. 18-A/2003 by this judgment and decree, eviction of the application under section 12 (1) (a) of M.P. Accommodation Control Act was ordered. Shri V.K. Bharadwaj counsel for the appellant submitted that once an appeal is not accompanied with an application for condonation of delay then the appeal itself is not maintainable and in view of provision of Order 41 Rule 3 CPC the appeal was liable to be dimissed. Inter alia contending that when the appeal was presented on 20th April, 2006 no application under section

(3.) FROM the aforesaid it is clear that even if the memorandum of appeal is not accompanied by such an application at the first instance the deficiency is curable it can be rectified. In the light of the legal principle laid down by Supreme Court in the case of State of M.P. v. Pradeep (supra) as indicated hereinabove and by following the same learned additional district Judge having entertained the application for condonation of delay, I find no error of law or error of jurisdiction in the matter. Discretion exercised by Court below in allowing the appeal and the application under section 5 of the Limitation Act.