HARI RAM Vs. SURESH CHAND & ORS

JUDGEMENT

(1.) The appellant's appeal filed against the order of eviction passed against him was dismissed on the ground that the appeal had abated as no application for bringing on record the legal representatives of the plaintiff-land lord had been filed within the period of limitation. The facts are as under: -

(2.) During the pendency of the appeal, the plaintiff- respondent Suresh Chand died on 28.10.1985 and when the matter came up before the learned first appellate court on 27.1.1986 an application was moved by the learned counsel who was representing the plaintiff-respondent-landlord stating that the plaintiff had died on 28.10.1985 and that the appeal had abated as no application for bringing on record the legal representatives of the deceased had been filed and praying that the appeal be dismissed as having abated. Thereafter, the appellant filed an application under order 22 rule 4 of the Code of Civil Procedure (the Code) on 11.5.1986 stating that after learning about the death of the plaintiff-respondent on 27.1.1986 he had been making efforts to find out the addresses of his legal representatives and thereafter he fell ill and on recovering from illness he contracted the counsel on 11.5.1986 on which date the application was filed. In the application neither the date of the applicant-appellant falling sick was mentioned nor the name of the doctor from whom did he get treatment was mentioned. The learned trial court recorded the statements to find out whether there was a case for condonation of delay. During the course of evidence the appellant produced his medical certificate dated 8.5.1986 issued by Dr. Trilok Chand of Ajmer certifying that the appellant was ill from 20.4.1986 to 10.5.1986 and that he needed rest for getting recovered. Dr. Trilok Chand was neither summoned nor produced in court and as such no evidence in support of the case of the applicant-appellant was produced and the certificate did not even mentioned the illness if any, of the appellant. After considering the statements made on oath, the learned trial court has come to the conclusion that there was no sufficient cause for the delay and also observed that he could not explaine as to how a doctor can issue a certificate on 8.5.1986 certifying that the appellant was to be ill till 10.5.1986. He has disbelieved that there was any sufficient cause for not filing the appeal within the period of limitation. In this view of the matter, the appeal has.been dismissed as having abated. Hence this appeal at the instance of the applicant-appellant.

(3.) I have heard the learned counsel for the parties and have also perused the record of the case and copies of which are available with the learned counsel for the parties.