FAKIRCHAND Vs. JHADULAL

JUDGEMENT

(1.) IN this appeal, the following substantial question of law was framed, by order dated 11.11.1998 :

(2.) LEARNED appellate Judge decided the application on the basis of affidavits instead of calling for the evidence and held that there was discrepancy in the affidavit and the application under section 5 of the Limitation Act as against the medical certificate which stated that the appellant was being treated between the period from 25.1.1996 to 26.3.1996. The lower appellate Court held that the medical certificate did not accompany the application under section 5 of the Limitation Act and, therefore, the medical certificate was suspicious. Therefore, that application under section 5 of the Limitation Act was dismissed soa1so the appeal.

(3.) UNDER such circumstances, the impugned order dated 7.1.1998, rejecting the application under section 5 of the Limitation Act, is hereby set aside. It is directed that the case shall go back to the Court below for determining, after recording of the evidence, if the appeal is barred by time. In case, the delay is not condoned by the Court below, the appeal would be liable to be dismissed as such. In case, the Court below comes to the conclusion that there was sufficient cause for delay in filing the appeal, then there would be a case for condonation of delay. The Court below shall decide the case in accordance with law and on the facts produced before it. The case is remitted back to the lower appellate Court for decision in accordance with law. Consequently, the second appeal succeeds and is allowed to the extent already indicated. There shall be no order as to costs.