BRIJENDRA NATH MATHUR Vs. DINESH CHAND MATHUR

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiffs against the judgment and decree of Additional District Judge, Jaipur City, Court No. 6, dated 6th September, 1979.

(2.) ONE Achleshwar Nath (since deceased) filed a suit for eviction and arrears of rent with regard to certain premises let out to defendant Dinesh Chand in the year 1969 at Rs. 150/- p.m. The eviction was sought on the ground of default in the payment of rent for more than six months and for reasonable and bonafide person necessity of the plaintiff. During the pendency of the suit plaintiff Achleshwar Nath expired and thereafter Shri Brijendra Nath (son) and Smt. Raj Rani (widow) were substituted as plaintiffs in place of Achleshwar Nath. The suit was contested by the defendant on all the grounds. The trial Court after recording evidence of the parties decided the question of reasonable and bonafide necessity in favour of the plaintiffs and decreed the suit by judgment dated 13th April, 1978. The defendant aggrieved against the judgment and decree of the trial Court filed an appeal on 4th September, 1978, along with an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal. The learned Additional District Judge by his order dated 12th January, 1979, held that the defendant-appellant was entitled for condonation of delay and as such treated the appeal within limitation. Learned Additional District Judge thereafter heard the appeal on merits and by his judgment and decree dated 6th September, 1979, set aside the judgment and decree of the trial Court and dismissed the suit filed by the plaintiffs. In these circumstances the plaintiffs have filed this second appeal.

(3.) SHRI R.C. Kasliwal, learned counsel for the plaintiff appellants vehemently contended that learned Additional District Judge committed a serious error of law in condoning the delay in filing the first appeal and no good cause was shown by the defendant appellant for allowing the application under Section 5 of the Limitation Act. Before considering the argument of Shri Kasliwal, it would be necessary to state the facts with regard to the application filed under Section 5 of the Limitation Act for condonation of delay. The trial Court passed the judgment and decree on 13th April, 1978. The defendant through his counsel filed an application for obtaining certified copy of the judgment and decree on 26th April, 1978. The original application filed on 26th April, 1978, is available on record of the file of the trial Court. There is an endorsement of presentation of this application by Shri B.P. Gupta, Advocate and for calling the record and to issue the copy according to the Rules on 3rd May, 1978. It appears that on 3rd May, 1978, the concerned file had not come from the record and there is no order passed on 3rd May, 1978 for fixing another date. There is an endorsement on the back of this application dated 11th May, 1978 that a deficiency of Rs. 40 p. and 10 papers be got completed from the applicant. The defendant was not given any notice of this order regarding deficiency and it appears that the deficiency stamps were supplied on 27th June, 1978. Thereafter there is no mention on this application as to when the copies were ready. The defendant has stated in his application under Section 5 of the Limitation Act filed before the lower appellate Court that he had been regularly approaching for the copies but the concerning clerk always informed him that the copies had not been prepared and then the petitioner came to know on 22nd August, 1978, from the Head clerk that the copies had been prepared. The defendant appellant in these circumstances submitted an application on the same day along with an affidavit to the officer concerned of the Copying Department and on inquiry the mistake of the clerk concerned was detected and ultimately the copy was issued to the petitioner on 1st Sept., 1978. As the petitioner was regularly informed from the copy department that his file and not come from the record concerned as such there was no necessity for him to see the notice board nor he was aware regarding any notice board. The petitioner in these circumstances was legally entitled for the period from 26th April, 1978 to 1st September, 1978 in obtaining certified copies of the judgment and decree of the trial Court. In the alternative it was also prayed that there was sufficient reason for condonation of delay from 19th July, 1978 to 1 September 1978. It may be mentioned at this stage that 19th July, 1978, is the date which was notified on the notice board that certified copies were ready. The petitioner in the application further stated that on 2nd September, 1978 his counsel was out of station and 3rd September 1978 being Sunday, the appeal was filed on 4th September, 1978. The application was contested by the plaintiff.