ORDER : In this civil revision petition, Mr. M.S. Kurien, learned counsel for the appellant in C. M. P. 1106/1963, on the file of the District Court, Alleppey, who is the petitioner herein, challenges the order of the learned District Judge dismissing the application filed under S.5 of the Limitation Act for excusing the delay in the presentation of the appeal before that court by six days. 2. The petitioner had filed an application in the first court claiming relief under Act 31 of 1958 and being dissatisfied with the relief so obtained wanted to seek the order modified, if h; can, by filing A. S.334/63. 3. In the appeal there was no controversy that both the applications were filed beyond the period of limitation and that there was a delay of six days. The reason for the delay given by the petitioner was that he was having skin disease and for that purpose he had gone from his village to another village, namely, Kurinji, and he was having treatment in that village under pw. 5 from 23-5-1963 to 23-6-1963. According to him, after coming back to his village, he contacted his counsel on 24-6-1963 when he was informed that the time for filing the appeal is also elapsed and therefore the appeal along with an application to excuse delay was filed on 25 6 1963. 4. The reasons given by the petitioner for filing the appeal out of time were, no doubt, controverted by the respondent, before the learned District Judge. The petitioner had examined five witnesses on his side, pw. 1 being the petitioner himself and pw. 5 being the Ayurvedic Physician who, according to the petitioner, treated him for the skin disease. pws. 2 to 4 were also persons who claim to have been at Kurinji at about the time and having treatment for the same trouble at the hands of pw. 5 and they speak to having seen the petitioner at the material time undergoing treatment under the same physician in the same village. 5. The learned District Judge has no doubt prima facie recorded strong evidence as against the petitioner and ultimately the learned Judge is of the view that the evidence adduced by pws. 5 and they speak to having seen the petitioner at the material time undergoing treatment under the same physician in the same village. 5. The learned District Judge has no doubt prima facie recorded strong evidence as against the petitioner and ultimately the learned Judge is of the view that the evidence adduced by pws. 1 to 5 cannot be accepted and on that ground the learned District Judge further held that the petitioner has not satisfied the court that he was prevented from sufficient cause in filing the appeal in time. 6. In view of the fairly strong findings entered by the learned District Judge, and as the finding has been recorded on a consideration of the oral evidence adduced in this case, I took trouble to find out whether there has been any serious attempt made by the respondent to disprove the case of the petitioner that he was actually ill during the particular time, which necessitated medical treatment. It may be, I am prepared to accept, that even the petitioner has not given the dates accurately; and making due allowance for that purpose in this regard, I wanted to satisfy myself whether for substantial justice the order required interference at the hands of this court. 7. For that purpose, I have gone through the evidence, in particular that of P. W. 1, the petitioner himself, as well as that of the Ayurvedic Physician, P. W. 5. 8. No doubt, the evidence recorded by the learned Judge is attacked by Mr. M.S. Kurien and in turn sought to be supported by the learned counsel, Mr. V. Harihara Iyer, for the respondent. 9. Learned counsel for the respondent pointed out that the evidence of P. Ws. 2 to 4 have not been accepted by the lower court and even the evidence of P. W. 5, the Ayurvedic Physician, will clearly show that at one stage he was prepared to say that he was maintaining records which will show the persons who had been treated by him and that 'statement was given a go-by when he was further cross-examined and made an attempt even to go back on his statement and said that the register does not contain the year, or the month or the date when the persons were treated. 10. 10. No doubt, all these circumstances do make the position of the petitioner a little more difficult, especially when this court is exercising its jurisdiction under S.115 of the Code. 11. Before I consider the actual evidence of the petitioner, it is necessary to refer to an objection that has been raised by the learned counsel for the respondent, Mr. V. Harihara Iyer, regarding the maintainability of this civil revision petition. According to the learned counsel, the order under attack is one passed rejecting an application filed under S.5 of the Limitation Act. In consequence of this order, the appeal itself has been dismissed and therefore the proper remedy that was available and that should have been adopted by the petitioner was not to challenge the order passed in revision in this court under S.5 of the Limitation Act but inasmuch as the order dismissing the appeal amounts to a decree, the petitioner should have filed a further appeal in this court challenging the decree itself, in which appeal this court can go into the question as to whether the order was correct or not. 12. I am not inclined to accept this very large contention raised by the learned counsel for the respondent. 13. The foundation for the order of the learned District Judge dismissing the appeal as filed out of time is really the order passed by the learned District Judge in C. M. P. 1106/63 dismissing the application filed by the petitioner under S.5 of the Limitation Act. 14. If this Court is satisfied that the rejection of the application under S.5 of the Limitation Act by the lower court is not justified, in my opinion, the order of the learned District Judge dismissing the appeal based upon this order will be absolutely void and if the order under attack is set aside the legal consequence will be all those orders, will have no effect in law. 15. On this aspect, I am fortified by the view expressed by my learned brother Mr. Justice P. T. Raman Nayar in the decision reported in Chappila and Others v. Chemmaran and Others ( 1960 KLT 1361 ) as well as by Mr. Justice Madhavan Nair in the decision reported in Radhakrishnaru v. Madhavan Pillai ( 1961 KLT 3 ). 15. On this aspect, I am fortified by the view expressed by my learned brother Mr. Justice P. T. Raman Nayar in the decision reported in Chappila and Others v. Chemmaran and Others ( 1960 KLT 1361 ) as well as by Mr. Justice Madhavan Nair in the decision reported in Radhakrishnaru v. Madhavan Pillai ( 1961 KLT 3 ). No doubt, these learned Judges had to consider different aspects' but ultimately the principle emerged from this discussion is what I have adverted to earlier. Therefore, the preliminary objection regarding the maintainability of this revision raised on behalf of the respondent will have to be over-ruled. 16. Now coming to the merits, as I have mentioned earlier, I have gone through the evidence of. P. W. 1 and the petitioner, unfortunately, has brought this situation upon himself by examining too many witnesses to substantiate his case. He could have very well done by examining only himself to satisfy the court his real grievance that he was ill at the material time, and might have attempted to support his case from the evidence of P. W. 5 the Ayurvedic Physician. P. W. 5 being the Ayurvedic Physician wants to appear very big in the eyes of the court when he claims that he has registers to show when a particular patient was treated by him and the statement that as many as 100 persons will be coming to him for treatment on some occasions. The court certainly can make due allowance to the exaggeration of this professional gentleman; but ultimately, as I have mentioned earlier, the question is whether there has been a serious attempt made by the respondent to challenge the claim of the petitioner that he was ill at the material time and was absent from his usual place of residence and have to be gone into. 17. It is from that point of view, I have considered the evidence of P. W. 1 and so far as I could see there has been no attempt to show from the answers given by the witness during cross-examination that he was not really ill during the particular time. 18. 17. It is from that point of view, I have considered the evidence of P. W. 1 and so far as I could see there has been no attempt to show from the answers given by the witness during cross-examination that he was not really ill during the particular time. 18. The question that has been asked is as to whether there was any documentary evidence to show that he was ill during the particular time and as to whether he was receiving any letters during his absence and as to whether he was receiving any letters from his counsel. The petitioner has stated that he has got no record to show that he was undergoing treatment during the particular time nor has he received any letters from his counsel. On the other hand, he has stated that he was getting rice through his servants. 19. In view of all these circumstances, in my opinion, notwithstanding some of the discrepancies in the evidence of the other witnesses and also the evidence though exaggerated, given by the Ayurvedic Physician, P. W. 5, the evidence of P. W. 1 does require a little more serious consideration at the hands of a court. That consideration, I should say, has not been given by the lower court in assessing the truth or otherwise of the evidence of P. W. 5. 20. This is not certainly to say that the petitioner must be given a chance straight away to have his appeal taken on file and disposed of on merits. That does not appeal to me at all. But in the interests of justice, in my opinion, the petitioner must be given an opportunity to have his grievance agitated before the trial court, and then the appeal disposed of on merits. 21. Therefore, the order of the learned District Judge in C. M. P. 1106 of 1963 as well as any further order that may have been passed by that court dismissing A. S. No. 334 of 1963 on the ground that the appeal is filed out of time will both stand set aside and the application for excusing the delay in filing the appeal and the appeal taken on file by the District Court for disposing them according to law. provided the petitioner pays a sum of Rs. provided the petitioner pays a sum of Rs. 50/- to the counsel appearing for the respondent in this C. R. P. within three weeks from to-day. If the amount is paid as per the directions in this order and within time, the order will be given effect to and the matter will stand remanded and in default of the payment or not within time, this revision will stand dismissed with costs.