SARVAN KUMAR Vs. CHUNI LAL AND ORS

JUDGEMENT

(1.) The defendant is in second appeal against the judgment and decree of the Trial Court whereby suit of the plaintiff for specific performance of agreement to sell dated 30.05.1996 has been decreed and appeal filed by the defendant/appellant has been dismissed by the Additional District Judge, Narnaul vide his judgment and decree dated 27.03.2009 on the ground that the appeal has been filed after the expiry of period of limitation.

(2.) The only point involved in this appeal is as to "whether the First Appellate Court should have condoned the delay of 10 days in filing of the appeal for the reasons assigned in the application."

(3.) The appellant had filed the appeal along with an application under Section 5 of the Limitation Act, 1963 [for short "the Act"] in which it was averred that the judgment and decree was passed by the Trial Court on 05.12.2005. Certified copy of the judgment and decree was applied on the same day through his Advocate and was delivered on 07.12.2005. On 08.12.2005, his Advocate had sent message to him, but it was not conveyed. On 05.01.2006, when his Advocate informed the appellant to visit his office for the purpose of preparation of grounds of appeal, he asked the appellant for the court fee also, but that was not readily available with the appellant. According to the appellant, he borrowed money from his relations on 15.01.2006. The stamps were purchased on 18.01.2006 and the appeal was filed thereafter. In this process, delay of 10 days had occurred in filing of the appeal which has not been condoned by the First Appellate Court while relying upon a Division Bench judgment of this Court in the case of Kulwant Kaur v. State of Punjab.,1999 1 RecCivR 474.