DUNGARMALL SAREWALLA JAIN Vs. RUKMA KUMAR JALAL

JUDGEMENT

(1.) This rule arises out of an application under Section 5 of the Limitation Act, 1963, (Act XXXVI of 1963), for condoning the delay in filing the appeal. The appeal was filed on January 6, 1969, and according to the Stamp Reporter, the appeal would be in time if filed on January 3, 1969, but was out of time for 3 days. The memorandum of appeal was returned to the learned Advocate for the appellants on February 20, 1969, and the application on which this rule has been issued was filed on February 21, 1969.

(2.) The plaintiffs appellants' explanation for this delay is that the judgment under appeal was delivered on November 15, 1968, and the decree was prepared on November 26, 1968. The appellant No. 2 who was in charge of the suit, on receipt of the news of death of his brother-in-law left Calcutta in the third week of November 1968 and returned to Calcutta on December 10, 1968. The application for copy was made by him on December 12, 1968, through Deonandan Ojha, the clerk of their Advocate. The clerk received the certified copy on December 24, 1968, but unfortunately misplaced the same. The Court was closed for the Christmas holidays during December 25, 1968 to January 1, 1969 both days inclusive. "After the reopening of the Court on January 2, 1969, the said Ojha came to know from another Advocate's clerk that he found one certified copy lying on the Advocates' clerks room of the Court on December 24, 1969, and at his request the said clerk brought and handed over the said copy to Deonandan Ojha on the following day on January 3, 1969. The appellant No. 2 received the copy on January 3, 1969, and immediately handed it over to his Advocate, who prepared the memorandum of appeal on the evening January 4, 1969, and the appeal was filed on January 6, 1969, the intervening January 5, 1969, being a Sunday. The allegations are also supported by the affidavit of the said clerk Deonandan Ojha.

(3.) The rule is opposed by the defendant opposite party, who denied the material allegations made in the petition filed by the appellant. It was further contended that the time for filing the appeal expired on December 23, 1968, and as such in absence of any explanation for delay from December 24, 1968, the application for condonation of the alleged delay should be dismissed and this rule should be discharged.