DARSHAN SINGH Vs. COLLECTOR SINGH

JUDGEMENT

(1.) Facts relevant for the purpose of this appeal are in very narrow compass. Plaintiff/respondents instituted a suit for declaration of title and perpetual injunction which was decreed on 1 st November, 2007 by the Courts of Civil Judge Class-I, Ambah, District Morena. Defendants/appellants preferred a regular Civil Appeal accompanied by application under Order 41 Rule 3-A of CPC read with section 5 of Limitation Act on 1.1.09. In the application for condonation of delay, it was stated that the appellant No. 3, Mahaveer Singh was looking after the case, who is as illiterate agriculturist. He was not informed by his counsel in the trial Court about the judgment dated 1st of November, 2007. On 10.11.08 plaintiffs/respondents threatened them that they have succeeded in the suit and they will not allow the defendants to perform agricultural operations on the suit land. Mahaver Singh immediately, visited his advocate at Ambah, who did not respond satisfactorily. Thereafter, he contacted another advocate, namely, Shri Abhishek Kamthan, who collected the information, since Mahaveer Singh was not having file papers with him. Shri Kamthan, learned Advocate, informed the appellant Mahaveer Singh about the suit having been decreed in favour of plaintiffs on 1.11.07. After acquiring information, an application to obtain certified copy of the judgment and decree of the trial Court was submitted on 12.11.08. Certified copies were delivered on 15.12.08. After going through it, defendants/appellants were asked to obtain the certified copy of Khasra of Samvat 2007,2009,2020-2024,2025,2026-2030. They were so obtained from the office of Collector, Morena on 29.12.08. Mahaveer Singh made available all the said papers to counsel at Morena for preparation of appeal which was submitted on 1.1.09 alongwith an application for condonation of delay because there was winter vacation in the intervening period from 22.12.08 to 31.12.08. Rest of the time was taken by the counsel in preparation of regular Civil Appeal. Thus, it was prayed that the delay in submission of regular Civil Appeal before the Court of Additional District Judge, Ambah District Morena maybe condoned.

(2.) Learned lower appellate Judge even without issuing notice to the opposite party (i.e. present plaintiffs/respondents) dismissed the application for condonation of delay and further dismissed the appeal as barred by limitation. Aggrieved by the same, present appeal has been preferred which is admitted and heard on the following substantial question of law:

(3.) Shri P.C. Chandil, learned counsel and Shri K.S. Tomar, Sr. counsel made their respective submissions.