SHANKAR DASS Vs. HANS RAJ

JUDGEMENT

(1.) THIS civil second appeal is directed against the judgment and decree of the learned Sub -Judge (C. J. M.). Jammu dated 30 -3 -1974 dismissing the appeal of the appellant as barred by limitation.

(2.) BRIEFLY speaking the facts of the case are that in a suit for ejectment and recovery of arrears of rent in respect of suit premises, the Munsiff, R. S. Bora, passed an ex parte decree on 3 -3 -1972. The defendant appellant filed an application on 29 -3 -1972 under order 9 rule 13 of the Civil Procedure Code for setting aside the ex parte decree. On appeal before the Sub -Judge (C. J. M.) on 12 -2 -1973 the order of dismissal was upheld. A revision petition was filed before this Court which also met the same fate on 4 -10 -1973. Having failed on all fronts the defendant appellant thereafter filed an appeal against the ex parte decree of the trial court on 20th of October, 1973 before the Sub -Judge (C. J. M.), Jammu. Along with the memo of appeal he filed an application under section 5/14 of (the Limitation Act for condoning the delay of one year and 71/2 months. The appellant claimed the benefit of extension in time on the ground that he had pursued another legal remedy under order 9 rule 13 of the Code of Civil Procedure. He was under a bona fide belief that he would succeed in that civil proceeding which he pursued with due care and attention. Also he was advised by this counsel that in the event of his failure in getting the ex parte decree set aside he could thereafter file an appeal against the said order. The learned Sub -Judge (C. J. M.) dismissed the application under section 5/14 of the Limitation Act. He held that the appellant had not established sufficient cause for claiming the benefit of section 5. The grounds urged by him did not entitle the appellant to seek condonation of delay. The learned Court therefore dismissed the appeal as time barred. Aggrieved by this the defendant has come up in second appeal before this court.

(3.) I have heard the elaborate arguments of the learned counsel for the parties.