JAHUR MOHD. Vs. HAJI ABDUL GAFFAR KHAN

JUDGEMENT

(1.) HAVING heard learned Counsel for the petitioner, perusing the memo of revision petition and the impugned order, I am satisfied that the order of the appellate court is perverse and it cannot be allowed to stand. Leaving apart the fact that the provisions of Order 41 Rule 3 -A C.P.C. may be directory, otherwise also it is not in dispute that along with the appeal the petitioner has filed an application under Section 5 of Limitation Act. It is not accompanied with the affidavit so another application is filed, but that does not mean that the first application goes. On the merits also the learned first appellate court has not considered the ground mentioned in the application under Section 5 of Limitation Act for condonation of delay i.e. illness of the appellant, who has also filed the medical certificate. In the facts of this case in case the order of the Court below is allowed to stand it will certainly occasion failure of justice to the petitioners.

(2.) IN the result the revision petition succeeds and the same is allowed. The order dated 4.9.2000 passed by first appellate court, Additional District Judge No. 1, Ajmer is quashed and set aside. The first appellate court is directed to decide the application of the petitioners filed under Section 5 of Limitation Act in accordance with law and in the light of observations made in this order. No order as to costs.