PIRABHU Vs. BHIRKHA AND OTHERS

JUDGEMENT

(1.) PIRBHU instituted a suit for possession of agricultural land in village Madina - Gaindran against Birkha and others on the ground that he had been forcibly removed from it. The defendants pleaded limitation and adverse possession. Though the trial Court decreed this suit it was dismissed by the decree of the lower Appellate Court Sarkaria J. in Regular Second Appeal No 640 of 1962, dismissed the appeal of Pirbhu on 25th January, 1968. The copy of the judgment of Sarkaria J. which was applied for on 27th of January, 1968, was ready for delivery on 13th of March, 1968. Under rule 4 of the Rules and Orders of the Punjab High Court, Volume V, Chapter 1 -A: No memorandum of appeal preferred under clause 10 of the Letters Patent shall be entertained if presented after the expiration of 30 days from the date of the judgment appealed from unless......Such memorandum of appeal need not be accompanied by a copy of the judgment appealed from, but a memorandum of appeal for which a certificate is required under clause 10, must contain a declaration to the effect that the Judge, who passed the judgment, has certified that the case is a fit one for appeal. The time spent in obtaining the certificate from the Judge (including the date of application and the date on which the Judge passed to order) shall be excluded in computing the period of limitation.

(2.) THE last day for filing the letters patent appeal, taking into account the time spent in obtaining the copy of the judgment, was 15th of April, 1968. On that date an application for the grant of certificate was made and this was admittedly within time. The certificate was granted by the learned Judge on 12th July, 1968. As the applicant has exhausted the permissible period for copies, the letters "patent appeal had to be filed on 12th of July, 1968. This however, was not done and the appeal was filed on 15th of July, 1968. In the application under section 5 of the Limitation Act for condonation of delay, it is pleaded that 13th and 14th of July. 1968 were holidays and the appeal was filed on the 15th as copies of judgment of Sarkaria J. and other papears had to be typed.

(3.) THIS should be read in continuation of the order passed by us on 29th January, 1969, in Civil Miscellaneous 4551 of 1968, disallowing the claim of the applicant for condonation of delay under section 5 of the Limitation Act in filing the Letters Patent Appeal 372 of 1968. The appeal in the normal course would have been dismissed automatically, but Mr. U.D. Gaur, learned counsel for the appellant, has vehemently argued that the application under section 5 of the Limitation Act had been made inadvertently and that the appeal was not, in fact, barred by time. If the contention of Mr. Gaur is correct, then the application for condonation of delay and the decision thereon given by us on 29th January, 1969, would of course be treated as superfluous.