ARJUN PRASAD Vs. GORAKH PRASAD

JUDGEMENT

(1.) This is an appeal under Section 48 of the Assam Frontier (Administration of Justice) Regulations, 1945, read with Civil Procedure Code, 1908, against the ex-parte judgment dated 3.3.93 of the Deputy Commissioner, East Siang Distinct, Arunachal Pradesh, in TS No. 5/91.

(2.) The brief facts for the purpose of disposal of this appeal are that the respondents filed the aforesaid T$ No. 5/91 before the Deputy Commissioner, East Siang Djstrict, Arunachal Pradesh, (for short "the Deputy Commissioner" ) for account of receipts and expenditures of a firm styled as M/s Chirkutram Sheonarayan" in respect of Arms and Ammunitions dealership business carried on by the said firm for the period from 1984-85 till 1990-91 and for payment of their shares of the profits out of the said dealership business amounting to Rs. 4,66,666/- and for appointment of a receiver. The Deputy Commissioner issued summons to the defendants, who are appellants in this Appeal, by order dated 26.3.91. Pursuant to the said summons, the appellant-defendant No. 2 appeared before the Deputy Commissioner on 29.4.91 and filed Written statement disputing the claims of the plaintiff-respondents but the appellant-defendant No. 1 dis not appear before the Deputy Commissioner and the case was adjouurned till 15.7.91 for appearance of the parties and filing of written statement. Thereafter, the case was adjourned from time to time and finally on 9.3.91, the Deputy Commissioner passed orders that as the defendants regularly defaulted in appearance before the Court, the suit will proceed ex-parte and the plaintiffs were directed to be present 'with their witnesses to adduce evidence. Thereafter on 24.4.92, the suit was heard ex-parte when two witnesses were examined on behalf of the plaintiffs and the case was reserved for judgement. On 6.8.92, a petition was filed by the appellant-defendants in the said suit praying for reviewing the decision setting them ex-parte in the suit but the said petition was rejected by the Deputy Commissioner on the ground that the defendants were defaulting regularly in attending Court from the very beginning and it was only after the Court had taken a decision to hear the suit ex-parte that the defendants had approached the Court for reviewing the ex-parte decision. Thereafter, the Deputy Commissioner did not deliver judgment on 24.12.92 to which it was posted but finally delivered the same on 3.3.93 decreeing an amount of Rs. 4,66.666/- against the appellant- defendants as 1/3 share of the dealership business for the year 1985 to 1995 and appointed a receiver with a direction that the receiver shall take over the said business from the appellant-defendants immediately and thereafter run the business, render account for each year and distribute the profits amongst the plaintiffs and the defendants equally until further orders. Aggrieved by the said judgment and decree of the Deputy Commissioner the two appellants-defendants have filed this appeal before this Court.

(3.) At the outset Mr. Banerjee, learned consel for the appellants, submitted that the appeal was filed beyond the prescribed period of limitation and for the delay of 90 days, an application under Section 5 of the limitation Act had been filed for condonation of delay. But while admitting the appeal, the question of limitation was not decided and has been left open for decision at the time of hearing of the appeal. Mr. Banerjee relied on the averments made in the application for condonation of delay and submitted that after the judgment was pronounced by the Deputy Commissioner on 3.3.93, an application was filed on 3.5.93 by the Manager of the firm on behalf of the appellants for certified copy of the judgment and decree and the certified copy was obtained on 28.5.93 and thereafter the learned counsel for the appellant came to Guwahati on 30.5.93, prepared the appeal and took the same to Dibrugarh on 3.6.93 for being sworn by the appellants and thereafter the papers were sent back to Guwahati on 30.6.93 and finally presented before this Court on 20.7.93. The application for condonation of delay has been supported by a personal affidavit of the appellant No. 2. Mr. Baruah, learned counsel for the respondents, on the other hand, relied on the affidavit-in-opposition filed on behalf of the respondent-opposite parties denying the various averments in the application for condonation of delay and contended that the delay in filing the appeal has not been properly explained by the appellants.