TELENDRAJIT RAJ KUMAR Vs. GUNENDRAJIT RAJ KUMAR

JUDGEMENT

(1.) This is a second appeal and the point arises in this way.

(2.) When the appeal to the lower Appellate Court was presented it was found to be out of time. The appellant, who was the defendant No. 2 in the suit, filed an affidavit explaining circumstances. Upon that the then District Judge ordered the appeal to be admitted "subject to objection at the bearing." The appeal came on for bearing before his successor and it appears that on behalf of the respondents, the plaintiffs, no objection was taken at the hearing to the order of admission. The appeal was heard at length on the merits and the District Judge in his judgment has discussed and pronounced upon the merits, his conclusion being that the decree of the trial Court in favour of the plaintiffs was erroneous and that the suit should have been dismissed. Having, however, come to that conclusion, he seems to have noticed the order made when the appeal was admitted and acting suo motu he went on to deal with the question of limitation. On that question he found, against the appellant and in the result he was, as he himself expresses it, "unfortunately" compelled to dismiss the appeal on the ground that it was time-barred.

(3.) From that decision the defendant No. 2 has appealed to this Court. The case has been argued on his behalf, but not, we regret to say, on behalf of the plaintiffs who have not entered appearance before us,