DURGA PERSHAD Vs. SHRIMATI BIMLA DEVI

JUDGEMENT

(1.) Two points raise for decision in the present viz., whether it was within the competence of the Senior Subordinate Judge to condone the delay which was occasioned in the presentation of the appeal and (2) whether there is sufficient material on the file to justify the conclusion that the plaintiffs are unable to find suitable accommodation for themselves.

(2.) The facts of the case are simple and not seriously in dispute. One Ram Kumar, who was the owner of a certain house situate in Delhi, died some time ago, leaving behind him a widow and two sons. On the 10th July, 1951, the widow and her sons brought a suit for the ejectment of the tenant but the suit was dismissed on the grounds that they did not require the premises for their own use. The Senior Subordinate Judge, however allowed the appeal and decreed the plaintiffs' suit. The tenant is dissatisfied with the order and has come to this Court in revision.

(3.) The first point for decision in the present case is whether the lower appellate Court was justified in extending the period of limitation and entertaining the appeal even though it was presented after the expiry of the period of limitation. The plaintiffs suit was dismissed on the 22nd February, 1952. They applied for a copy of the decree and of the judgment on which it was based on the 1st March, 1952 and the copies were actually supplied to them on the 22nd March, 1952. Unfortunately the lawyer's clerk misplaced the copies and, as the period of limitation was about to expire, presented the memorandum of appeal without those copies on the 4th April, 1952. He obtained fresh copies of the documents in question and produced them in Court on the 17th April, along with an application under Section 5 of the Limitation Act for an extension of the period of limitation. The Senior Subordinate Judge recorded the statement of witnesses and having come to the conclusion that the delay in filing the necessary documents was occasioned by circumstances beyond the plaintiff's control extended the period of limitation and entertained the appeal.