USHA DIWAN Vs. ASHOK KUMAR

JUDGEMENT

(1.) This civil revision has been directed against the order of the Additional District Judge, Yamuna Nagar at Jagadhari dismissing the application of the petitioner for condonation of delay in filing the first appeal.

(2.) Respondent-Ashok Kumar filed a suit against Diwan Jawala Sahai for dissolution of partnership and rendition of accounts of the firm M/s. Indian Iron and Electrical Works, Paonta Sahib. The suit was decreed by the trial Court on 14.8.1980 whereby preliminary decree was passed the Local Commissioner was appointed to go into the accounts of the partnership. Diwan Jawala Sahai died on 3.9.1985 and thereafter his legal representatives (petitioner and respondent No. 2 herein) Shrimati Usha Diwan wife of Late Diwan Jawala Sahai and daughter Melu Vig were brought on record. The trial Court, after deciding the objections of the petitioner, passed the final decree on 14.9.1987. Petitioner applied for certified copy of the judgment and decree on 15.9.1987 which was prepared on 19.10.1987 and appeal in this Court was filed on 28.11.1987 in forma pauperis. When the application for forma pauperis came up for consideration before M.R. Agnihotri, J. on 28.1.1988, the following order was passed :-

(3.) In pursuance of the order of this Court, memorandum of appeal was returned to be filed in a proper forum and thus memorandum of appeal was filed before the District Judge, Ambala, on 3.2.1988. Since the appeal had been preferred in forma pauperis, application for forma pauperis was considered and it was found that the appellant was not an indigent person and therefore, her application was dismissed. However, time was allowed to make up deficiency in court-fee. Deficiency in court-fee was made good on 23.3.1991 and thereafter the learned Additional District Judge proceeded to decide the application was dismissed by the learned Additional District Judge, as he was of the view that the petitioner had not filed appeal before the Court of Additional District Judge within limitation and filing of first appeal in the High Court was a tactical move to make out a case for condonation of delay. This view he took primarily on the ground that affidavit of counsel who filed appeal in the High Court had not been filed. This order is now being challenged by the petitioner by way of the present civil revision.