BANWARILAL BOID Vs. P NEELAKANTHAM

JUDGEMENT

(1.) THIS is a second appeal preferred by the plaintiff from an order dated 19-10-62 of Sri C. Mohapatra, District Judge, Koraput-Jeypore, passed in Title Appeal No. 6 of 1962. rejecting a petition under Section 5 of the Limitation Act filed by the plaintiff-appellant before him and thereby ultimately dismissing the appeal as time-barred.

(2.) THE only question therefore that arises in this appeal is whether the District judge was justified in rejecting the appeal filed before him on ground of limitation by dismissing this application for condonation of delay.

(3.) IT is not in dispute that the appeal filed before the District Judge was beyond time by five days. The appellant filed an application under Section 5 of the limitation Act for condoning the delay. This application was supported by an affidavit. The circumstances detailed therein as the cause for delay are that the appellant was a cloth merchant and had to go to Bombay in connection with his business. He returned to Jeypore on 30th of January 1962, but found that his lawyer had left the town and gone to Cuttack in connection with some sales-tax matters. He also found that the clerk who was attached to the lawyer had left his service. He had already made arrangements for getting certified copies of the judgment and decree of the trial court in order to file the appeal and the copy had been obtained and was with the lawyer. But he could not get hold of the same as his lawyer and his clerk were both absent. He tried unsuccessfully to trace them with the help of another lawyer, Sri Sahu, from the office of his lawyer who was at cuttack. The copies were ultimately found out on the 5th and the appeal was filed on the 6th. These averments stand unchallenged as no counter has been filed by the other side.