PHULLO DEVI Vs. JAGAT RAM

JUDGEMENT

(1.) This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is directed against the order dated 23-4-2001 passed by the Addl. District Judge, Kaithal dismissing the application of the plaintiff-petitioners filed under Section 5 of the Limitation Act, 1963 (for brevity the Act) seeking condonation of 22 days delay in filing the appeal. The principal reason which persuaded the Addl. District Judge to dismiss the application is the version put forward by the plaintiff-petitioners namely he had gone on pilgrimage from where he returned on 5-8-2000 could not be believed because his presence'had been recorded at Kaithal on 29-7-2000 by the Court of Ms. Shalini Singh, Judicial Magistrate 1st Class Kaithal in her order Ex. R-1.

(2.) Moti Ram, father of plaintiff-petitioner Nos. 2 to 6 who is legal representatives has filed a suit for permanent injunction alongwith plaintiff-respondent No. 3 against defendant-respondent Nos. 1 and 2. The suit of the plaintiff-petitioner and also that of plaintiff-respondent No. 3 was dismissed under Order 17, Rule 3 of the Code on 7-6-2000. With the Object of filing appeal, an application for issuing certified copy was filed on 9-6-2000. The certified copy was prepared on 30-6-2000. For the reason that there were vacations from 15-6- 2000 to 15-7-2000, the Courts reopened on 17-7-2000 because 16-7-2000 was a Sunday. The appeal was instituted on 8-8-2000 i.e. after a delay of 22 days.

(3.) The main reason for the delay pleaded in the application was that petitioner Moti Ram was ill and after prolonged illness he died on 12-9-2000. He had gone for pilgrimage on 20-6-2000 and was to come back on 10-7- 2000. However, because of illness he was unable to come and in this process the filing of the appeal was delayed. He came back on 5-8-2000 and the appeal was filed on 8-8- 2000. The Addl. District Judge framed an issue and recorded the evidence as to whether there was reasonable ground to condone the delay in filing the appeal and proceeded to record the finding that it is unbelievable that once he had appeared before the Judicial Magistrate, 1st Class, Kaithal on 29-7-2000, he was outside Kaithal on that date. On the ground that presumption of truth and correctness attaches to judicial record, the learned Addl. Distt. Judge concluded that the version put forward by the plaintiff-petitioners cannot be accepted and believed. For those reasons, the application under Section 5 of the Act was dismissed and consequently the appeal was also dismissed.