HARIBANDHU KISAN Vs. UPENDRA KISAN

JUDGEMENT

(1.) The Appellant, by filing this Appeal, under Sec. 100 of Code of Civil Procedure, 1908 (for short, 'the Code"), has assailed the judgment and decree passed by the learned Additional District Judge, Sambalpur in R.F.A. No.19/19/19 of 2006-08.

(2.) Ms. Samapika Mishra reiterating the averments taken in the application submitted that the Appellant (Defendant No.1) having obtained the certified copies of the judgments and decrees had entrusted the matter to a counsel for filing the Second Appeal and he was told by the Counsel that he would inform the result of the Second. But even after for a long time, as he did not get any information, he came and ascertained that the lawyer entrusted by him to file the Second Appeal has expired. He, therefore, again obtained the certified copies of the judgments and decrees and presented the Memorandum of Second Appeal through another counsel. She submitted that the delay even though is for a long period, it was neither deliberate nor intentional but on account of the unavoidable circumstance and therefore, the Appellant having been prevented by sufficient cause for all these period, the delay need be condoned in the interest of justice.

(3.) Keeping in view the submissions made, I have carefully read the averments taken in the petition. When it is said that the lawyer, who had been entrusted by the Appellant to file the Appeal has expired and for that reason, the Memorandum of Appeal was not presented in time; it is found that the First Appellate Court had delivered the judgment in the First Appeal on 16/12/2009 and the decree was sealed and signed on 28/12/2009. The Appellant in the application filed on 8/11/2007 has stated that the counsel, who had been entrusted met his death two years before which thus the death of the lawyer as per the version of the Appellant was in the year 2015. Even accepting that version be correct, it is not explained as to why from the year 2010 till 2015, no action was taken.