SUKH SAGAR Vs. HEM RAJ

JUDGEMENT

(1.) The present appeal has been filed at the instance of the unsuccessful plaintiffs whereby their appeal before the Additional District Judge, Hoshiarpur has been dismissed as time barred. The admitted facts of the case are as under.

(2.) The plaintiffs-appellants filed a suit for declaration claiming their ownership to a plot situated in village Dehpur, District Hoshiarpur, on September 2, 1972. This suit was dism issed on August 17, 1974. The first appeal was filed before the Senior Sub Judge, Hoshiarpur on September 30, 1974. On October 1, 1974, the memorandum of appeal was scrutinised and it was found in order and duly registered. On January 14, 1977, however, when the appeal was being heard on merits by the Senor Sub Judge, it was found that as the value of the suit was beyond Rs. 250/- the appeal was not maintainable before him. He accordingly vide his order dated January 15, 1977, returned the memorandum of appeal to the appellants for filing the same in an appropriate Court. It is the case of the appellants that January 16, 1977, being a Sunday, the appeal was duly filed in the Court of the District Judge, Hoshiarpur on the next day i.e. January 17, 1977. The appeal was allocated to the Additional District Judge, Hoshiarpur, who vide the impugned judgment dated March 27, 1979, dismissed the appeal on the grounds that the appellants had the knowledge that the value of the suit was beyond Rs. 250/- and, therefore, the appeal lay to the District Judge and the application filed under Section 5 of the Limitation Act was not accompanied by the affidavit and that in any case the memorandum of appeal having been returned on January 15, 1977, there was no explanation as to why the appeal had been filed on January 17, 1977.

(3.) Mr. G.S. Jaswal, learned counsel for the appellants, has argued that though Order 41 Rule 3-A of the Code of Civil Procedure did require that an application for condonation of delay was to be accompanied by an affidavit, yet such an affidavit could be dispensed with if the facts of the case so warranted. He has argued that as the facts narrated above were on the record either judicial or administrative, there was no indefeasible requirement that an affidavit be filed. It was also argued that there was in fact no delay in re-filing the appeal as January 16, 1977, was a Sunday and the appeal returned on January 15, 1977 by the Senior Sub Judge was filed without any further delay and, therefore, the finding recorded by the first appellate Court that there was undue delay was without any basis. He had also urged that assuming for a moment that the appeal had been filed by mistake in the Court of Senior Sub Judge but that was at the instance of the appellant's counsel and that for the mistake of the counsel the party should not suffer. In support of this plea, he has urged that even the Senior Sub Judge, after scrutiny, had admitted the appeal for hearing on merits on October 4, 1974.