HARI SINGH Vs. GURBACHAN SINGH

JUDGEMENT

(1.) THE challenge in the instant Regular Second Appeal is to the order passed by the lower Appellate Court summarily rejecting the appeal preferred by the appellants on account of limitation.

(2.) IN order to determine whether or not the delay in filing the certified copy of the judgment and decree of the trial Court should be a basis for rejecting the main appeal itself on account of limitation, certain facts, which are relevant to determine the controversy in hand, are being noticed hereunder.

(3.) IN the application filed under Section 5 of the Limitation Act seeking condonation of delay emerging out of the belated filing of the certified copy of the judgment and decree of the trial Court dated 21.5.1982, it is expressly asserted that the applicant did not approach the Copying Agency to obtain a certified copy of the judgment and decree on account of his belief that the Copying Agency would be closed during vacations. In paragraph 5 of the application itself, the applicant also asserted that the counsel for the appellants-plaintiffs had informed him that the certified copy of the judgment and decree of the trial Court could be filed on the date already fixed for appearance i.e. 28.8.1982. Alongwith the aforesaid application dated, 28.8.1982, the counsel appearing for the appellants-plaintiffs has filed his personal affidavit acknowledging in paragraph 5 thereof that the delay has been caused due to wrong advice given by him unintentionally. In other words, he supports the factual position depicted in paragraph 5 of the application. A separate affidavit has been filed by the appellant reiterating the factual position disclosed in paragraph 5 of the application. A perusal of the impugned order reveals that the respondents-defendants chose not to controvert the factual position asserted in the application for condonation of delay by not filing any reply thereto. In the aforesaid view of the matter, it emerges that the factual position disclosed in paragraph 5 of the application for condonation of delay, supported by the affidavit of the appellants-plaintiffs and that of their counsel, remained unrefuted. On the basis of the aforesaid factual position itself, the lower Appellate Court should have condoned the delay in filing the appeal. A perusal of the impugned order passed by the lower Appellate Court, however, reveals that the facts noticed hereinabove were not at all taken into consideration. It is, therefore, apparent that the lower Appellate Court ignored to take into consideration relevant material while adjudicating upon the application preferred under Section 5 of the Limitation Act for condonation of delay.