GOPI LAL Vs. SUNDAR LAL

JUDGEMENT

(1.) The defendant-petitioner has filed this revision against the order dated 5-11-93 of Shri L. D. Sharma, R.H.J.S., District and Sessions Judge, Rajsamand in Civil Misc. Petition No. 19/1993 dismissing the same application filed under Section 5 of the Limitation Act.

(2.) It may be stated that initially the petitioner filed an appeal against the above order but when the maintainability of the appeal was challenged this Court vide order dated Dec. 11, 1995 allowed the objection and held that only a revision petition could be filed against the impugned order. On the request of the petitioner he was allowed to convert the appeal into revision.

(3.) The brief facts relevant for the disposal of this petition may be noticed. Sundar Lal non-petitioner-plaintiff filed a suit against the appellant Gopi Lal and respondent No. 2 Phool Puri for eviction and arrears of rent before the learned Munsif, Rajsamand. The suit was decreed by the learned Munsif by his judgment dated 27-3-93. Feeling aggrieved by the judgment and decree the defendant namely Phool Puri and Gopi Lal preferred an appeal before the learned District Judge, Rajasamand. Since the presentation of appeal was beyond the period of limitation, in compliance of the provisions of Order 4, Rule 3-A, C.P.C., the appellant also filed an application purporting to be under Section 5 of the Limitation Act for condonation of delay. The learned District Judge by the impugned order dismissed the application, as according to him, the appellant failed to satisfy the Court that the appellants were prevented from sufficient cause for not preferring the appeal within the period of limitation. It may be stated that Gopi Lal in the application filed under Section 5 of the Limitation Act has stated that he was undisposed before 23-4-93 and continued to be so up to 26-4-93. It was further stated that he was taken ill and remained at his house from 4-5-93 to 25-5-93. In support of the above application he also filed an affidavit. The plaintiff contested the above application by denying all the allegations made in the application. The plaintiff also filed his affidavit. The learned District Judge considered the application of the appellant and pointed out that the appeal was filed by two appellants namely Phool Puri and Gopi Lal but the application for condonation of delay was only made by the appellant Gopi Lal. The learned District Judge in para 3 of the order stated that the judgment and decree were passed on 27-3-93. The appellant filed an application for obtaining copies of the judgment and decree on 27-4-93. The copies were ready for delivery on 1-5-93 but the appellant obtained the same on 5-5-93. Regarding the illness of Gopi Lal the learned District Judge observed that as per averments made by the appellant it could be assumed that he was taken ill on 23 and 24 April, 1993. The appellant had enough time to obtain copies of the judgment and decree or at least he could have instruct his advocate for obtaining the copies notwithstanding his illness. He, therefore, found the appellant Gopi Lal negligent. He also observed that the appellant Gopi Lal only explained his socalled inability to file the appeal but not a word was added why the appeal was delayed by the another appellant namely Phool Puri.