KIDAR NATH ETC. Vs. MAN CHAND ETC.

JUDGEMENT

(1.) THIS appeal is directed against the order of the Additional District Judge, Narnaul dated December 5, 1987 refusing to recall his ex parte judgment and decree passed in Civil Appeal No. 300 of 18 -3 -1981 on May 16, 1986.

(2.) THE FACTS:

(3.) THE approach of the learned Additional District Judge, Narnaul in dis allowing the application for recalling the ex parte judgment and decree is unsustainable in law. If the appeal was filed beyond limitation, it was imperative for the Appellate Court to dispose of the application under Section 5 of the Limitation Act. Admittedly, the appeal was filed beyond limitation and was accompanied by an application Under Section 5 of the Limitation Act. Notice was issued in the application only and could not be issued in the main appeal. The appeal could only be entertained after the application Under Section 5 of the Limitation Act had been allowed. The learned Appellate Judge, for the reasons not apparent, did not dispose of the objection to the maintainability of the appeal in the impugned order. Both the parties to the lis did not join issue on this point that the appeal was filed beyond limitation and it was accompanied by an application under Section 5 of the Limitation Act. In the light of these positive avernments. it was imperative for the Appellate Judge to dispose of this plea and failure to do so has resulted in mis -carriage of justice. The principal contesting Respondent in the first Appellate Court had died during the pendency of the appeal. An application for bringing on record the legal representatives of the deceased was filed but no order was passed on that application. It is unfortunate that First Appellate Court did no understand the responsibility cast on it by the Statute. Even otherwise on merits, there appears to be ring of truth in the assertion made by the Defendants. They had engaged a counsel practising at Mohindergarh in District Narnaul. It appears that the counsel did not prosecute the appeal diligently. Difficulties do arise when an outside counsel is engaged but the parties cannot be made to suffer for the fault of their counsel. The conduct of the counsel for not putting in appearance may bordering mis -conduct for which remedy lay somewhere else. However, the court cannot permit an innocent party to suffer merely because his chosen Advocate defaulted.