SURESH KUMAR SONI Vs. RAMGOPAL CHOURASIA

JUDGEMENT

(1.) This revision has been filed under Section 115 of CPC, 1908 against the order dated 14.01.2019 passed in Civil Appeal No.943/2019 by the Third Additional District Judge Sagar, District Sagar (M.P.), whereby in an appeal preferred by the non-applicant/defendant No.2 the application filed by the said appellant under Section 5 of the Limitation Act, 1963 has been allowed and the appeal has been admitted for final hearing.

(2.) In brief the facts of the case are that the applicant herein had preferred a Civil Suit No.12-A/2014 for declaration, mandatory injunction, permanent injunction, demolition and for vacating the premises in possession of the non-applicants No.1 and 2. In the aforesaid suit, written statement was also filed by the non-applicants No.1 and 2 denying the averments made in the plaint. The written statement was filed by the defendants on 04.03.2013, however, on 21.02.2014 the trial Court proceeded ex-parte against the applicant No.1 and finally a judgment and decree was passed by the learned Judge decreeing the civil suit preferred by the applicant on 07.02.2015. Against the aforesaid judgment and decree an appeal was preferred by the non- applicant No.1 on 14.07.2015 along with an application under Section 5 of the Limitation Act for condoning the delay caused in filing the said appeal. A detailed reply to the aforesaid application under Section 5 of the Limitation Act was also submitted by the applicant and the affidavits were also filed by the parties under Order 18 Rule 4 of CPC. The learned Lower Appellate Court, vide its order dated 14.01.2019, after recording the evidence in respect of the delay caused in filing the appeal allowed the application under Section 5 of the Limitation Act by condoning the delay caused in filing the said appeal. The aforesaid order dated 14.01.2019 is under challenged before this Court in this civil revision.

(3.) Counsel for the applicant has vehemently argued before this Court and has submitted that the delay on the part of the non-applicant No.1 was deliberate and only to protract the trial, the appeal was filed after delay. It is submitted that in order to save himself from legal action the non-applicant No.1 deliberately did not mark his appearance, as during the course of trial he had submitted a fabricated copy of the sale-deed dated 14.02.2003 and when this fact came to the knowledge of the applicant the non-applicant No.1 never marked his appearance in the Court. It is further submitted that the delay caused in filing the appeal has not been properly explained nor any cogent evidence has been led by the non-applicant No.1 for condonation of delay in filing the appeal and the order passed by the learned Judge of the Lower Appellate Court is based on erroneous appreciation of evidence and the documents on record which is liable to be set aside.