MD OLI SHEIKH Vs. TARANI MAHATO

JUDGEMENT

(1.) This application is directed against the order no.12 dated June 24, 2005 passed by the learned District Judge, Malda in Title Appeal No.28 of 2003 thereby rejecting an application under Section 5 of the Limitation Act.

(2.) The plaintiffs/petitioners filed the Title Suit No.123 of 1992 for declaration of title, injunction and possession before the learned Civil Judge (Junior Division), Second Court, Malda. In that suit, the opposite parties contested the application by filing the written statement. Upon taking evidence, the learned Civil Judge (Junior Division) decreed the suit. Thereafter, the plaintiffs filed an appeal against the said decree along with an application under Section 5 of the Limitation Act. That application was rejected by the impugned order. So the applicants have come up with this application for setting aside the order of rejection of the application under Section 5 of the Limitation Act.

(3.) Mr. Hossain, learned Advocate appearing on behalf of the petitioners, submit that on 24.06.2005 the matter was fixed for hearing the application under Section 5 of the Limitation Act before the learned appellate court. On that day, the learned District Judge heard both the sides and passed the impugned order. No question arose as to adducing evidence by examining the petitioner and the doctor who examined the plaintiff/appellant no.4, Md. Kayesh Ali. Therefore, the appellants did not examine any witness but tendered the documents by way of annexures to the application under Section 5 of the Limitation Act. On the basis of the application supported by annexures and the written objection filed by the opposite parties, the learned District Judge disposed of the application under Section 5 of the Limitation Act rejecting the same. Therefore, the question of adducing evidence did not arise at all but the learned District Judge held a contrary view. He also contends that Md. Kayesh Ali was the tadbirkar of the suit on behalf of the plaintiffs and as he was ill and he suffered from paralysis, he was not able to make tadbir or file the appeal in time and as such the prayer for condonation of delay had been made. The learned District Judge should have allowed the application thereby admitting the appeal.