(1.) THE appeal by the lower Appellate Court has been dismissed as barred by limitation. An application under Section 5 of the Limitation Act filed before that Court for condonation of delay has also been rejected. This revision petition is against the rejection of that application.
(2.) THE judgment by the trial Court was delivered on 12. 9. 1986. On this very day, an application was made for obtaining certified copies of the judgment and decree. Copies were actually delivered on 1. 10. 1986, although these were ready on 22. 9. 1986. Counsel filed the appeal in the lower appellate Court by calculating the period of limitation from 1. 10. 1986 when the copy was delivered, ft ultimately transpired that the limitation shall start running from 22. 9. 1986, when the copy was ready. Under these circumstances it was pleaded that the counsel bona fide miscalculated the period of limitation for filing the appeal. The counsel himself entered into the witness box and on oath approved the contents of the application. There is no cross-examination at all. If that statement is accepted, the inescapable conclusion is that the counsel acted bona fide in the matter of calculation of limitation for filing the appeal. The lower appellate Court committed illegality in brushing aside the testimony of the counsel wholly on the ground that he had during the period gone away since his relative had met with some accident. From that it can not be inferred that he was making any statement contrary to the allegations made in the application under Section 5 of the limitation Act. To say the least, the finding, of the lower appellate Court in that regard order perversity. It has to be held under the circumstances that the advice given by the counsel in the matter for filing the appeal was bona fide and furnish sufficient cause for condoning the delay for filing that appeal. The application ought to have been allowed.
(3.) FOR the aforesaid reasons, this revision petition is allowed. The order rejecting the application under Section 5 of the Limitation Act is hereby set-aside. The appeal shall now be taken on its number and be decided on merits. The parties shall appear before the lower appellate Court on 9. 2. 1992. No fresh notices shall be issued by that Court for this purpose. No costs.