SHREENATH LOHIYA Vs. PUSHPADEVI & ANR

JUDGEMENT

(1.) This revision petition under Section 115 CPC is directed against the order dated 22/12/2016 passed by the District Judge, Jodhpur Metropolitan, whereby, the application filed by the respondent no.1 Pushpa Devi under Section 5 of the Limitation Act, 1963 has been allowed and delay of 5 days in filing the appeal has been condoned.

(2.) In a suit filed by the respondent No.1 Pushpa Devi, an application under Order XXXIX Order 1 and 2 read with Section 151 CPC was filed by her, which came to be rejected by the trial court by its order dated 24/1/2015. Feeling aggrieved, the respondent no.1 filed an application under Order XLIII Rule 1 (r) CPC before the District Judge, Jodhpur Metropolitan on 2/3/2015. The office raised an objection regarding appeal being barred by limitation, wherein, on 18/1/2016 an application under Section 5 of the Limitation Act was filed by the respondent no.1 inter alia indicating that after passing of the order dated 24/1/2015 the counsel representing the appellant was instructed to file the appeal, who had assured that as soon as the copy of the order will be received, he would prepare the appeal and would inform the appellant for signatures, however, the counsel suddenly fell ill and he was taken to Ahmedabad, he had to remain under treatment for long time and the appellant could not contact her counsel/file appeal. Whereafter, a colleague of the counsel was contacted, who informed about the illness of the counsel, and he was requested to obtain the copy and file appeal and as soon as the copy was received, the appeal was filed without any further delay. It was indicated that the delay occurred on account of illness of the counsel and, therefore, there was sufficient cause in filing the appeal with delay and, therefore, delay of 05 days deserves to be condoned.

(3.) The appellate court after hearing the parties, by the impugned order came to the conclusion that as the counsel was not well, the same led to delay and in the opinion of the court, the reason was sufficient for condoning the delay and consequently allowed the application and condoned the delay.