WAKAR QURESHI Vs. SHAHJADI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed challenging the order dated 07.05.2010 passed by 9 th Additional District Judge (Fast Track) Gwalior in Miscellaneous Civil Appeal No.04/2010, by which the appeal filed by the petitioner under Order 43 Rule 1(r) of CPC has been dismissed on the ground of delay.

(2.) The necessary facts for the disposal of the present petition in short are that the respondents had filed a suit for declaration of title and permanent injunction. An application under Order 39 Rule 1 and 2 of CPC was also filed. The Additional Civil Judge, Class-II, Gwalior to the first Additional Civil Judge, Class-II, Gwalior in Civil Appeal No. 22-A/2008 passed temporary injunction order dated 12.10.2009, thereby restraining the petitioner from interfering with the peaceful possession of the respondents and the parties were directed to maintain status quo.

(3.) It appears that the petitioner filed an appeal under Order 43 Rule 1 of CPC along with an application under Section 5 of the Indian Limitation Act for condonation of delay. Appellate Court by order dated 07.05.2010 passed in Miscellaneous Civil Appeal No. 4/2010 has dismissed the application filed under Section 5 of the Indian Limitation Act and consequently, the miscellaneous civil appeal was also dismissed. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that it is well established principle of law that while considering the application for condonation of delay, the Court should not adopt a hyper- technical view and should take a lenient view, so that the case can be decided on merits.