BHERONLAL Vs. POORANCHAND AND ORS.

JUDGEMENT

(1.) THE facts giving rise to this second appeal filed by Bheronlal defendant -appellant are as under: A suit filed against the defendant -appellant by the respondents No. 1 and 2 (the plaintiffs) was decreed by the learned trial court on 29.9.1984. The appellant filed an application in the copying agency on 23.10.1984 for grant to certified copy. He was directed to come to copying agency on 27.10.1984 for collecting the copy, but the copy was riot ready. Thereafter the copy was made ready on 6.11.1984 and a notice under Rule 235 of the Civil Courts Rules was affixed on the Notice Board intimating that the copy was ready. The copy was however collected by the appellant from the copying agency on 22.11.1984 and along with the certified copy so obtained the memorandum of appeal was filed by the appellant who also filed an application under Section 5 of the Limitation Act stating that he was not in know of the order dated 29.9.1984 and he learnt about it only on 22.10.1984 and that the copy was not ready on 27.10.1984 (the date given by the copying agency) and that thereafter since his wife was sick he attended to her and he contacted his counsel on 22.11.1984 and thereafter the copy was collected and appeal was filed. He prayed that the delay in filing the appeal be condoned. Vide the impugned judgment dated 9.8.1985, the application under Section 5 of the Limitation Act has been rejected by the learned District Judge, Ajmer, who has, consequently, dismissed his civil appeal No. 66/85 being barred by time. Hence this second appeal.

(2.) I have heard the learned Counsel for the parties and have also perused the record of the case.

(3.) IT has been contended on behalf of the appellant that the calendar of dates would show that in fact the appeal itself was not barred by time and there was no necessity for the appellant to have applied for condonation of delay and that this aspect of the matter has not been considered by the learned District Judge. Reliance has been placed on the decision in case Ramlal v. Bhanwari Devi of Division Bench of this Court and reported as 1984 RLW 605. In the said case at has been held that once the copy is not ready on the given date, the publication of the notice that the copy is ready under Rule 235 is not sufficient and that in such circumstances the date up to which the certified copy has been obtained will also be excluded for the purpose of Section 12 of the Limitation Act No authority taking a contrary view has been brought to my notice. The said authority covers the present and, as such, I am of the view that the impugned judgment cannot be upheld.