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2000 DIGILAW 578 (RAJ)

Devi Singh S/o Roop Singh @ Roopji v. Narainlal S/o Laxmanji

2000-05-04

SUNIL KUMAR GARG

body2000
JUDGMENT 1. - This is second appeal filed by the appellant- defendant against the judgment and decree dated 15.9.1990 passed by the learned District Judge, Sirohi, by which the learned Distinct Judge dismissed the appeal of the defendant-appellant filed against the judgment and decree dated 5.5.1986 passed by the learned Civil Judge, Sirohi, treating it time barred. 2. This second appeal arises in the following circumstances:- Brief facts of the case being narrated as question of limitation is involved in this case. The plaintiff-respondent filed a suit for mandatory injunction in the lower Court on 23.10.1979. Thereafter, written statement was filed on behalf of the defendant-appellant in the lower Court and after recording evidence of both the parties, the learned Civil Judge, Sirohi by his judgment and decree dated 5.5.1986 decreed the suit for the plaintiff-respondent for permanent mandatory injunction. Against the judgment and decree dated 5.5.1986 passed by the learned Civil Judge, Sirohi, the appellant-defendant preferred first appeal before the learned District Judge, Sirohi on 8.7.1987. The learned District Judge, Sirohi vide his judgment and decree dated 15.9.1990 dismissed the appeal of the defendant-appellant treating it time barred. Against the said judgment and decree dated 15.9.1990, the appellant-defendant has filed this second appeal in this Court. 3. This Court while admitting this second appeal on 3.12.1990, framed the following substantial question of law : "Whether the learned District Judge has seriously erred in holding that the appeal was not within limitation?" 4. Now the sole point in this second appeal is whether the appeal filed by the defendant-appellant in the first appellate Court i.e. before the learned District Judge was within limitation or not. 5. To decide the above question, some crucial dates which are essential should also be mentioned here: "1. That the learned Civil Judge delivered his judgment on 5.5.1986. 2. That from 1.6.1986 to 29.6.1986, there were summer vacations. 3. That the Courts opened on 30.6.1986 after summer vacation. 4. That on 30.6.1986, an application for obtaining the certified copies of the judgment and decree dated 5.5.1986 was filed by the defendant-appellant. 5. That certified copy of the judgment and decree dated 5.5.1986 was delivered to the defendant-appellant on 8.7.1986. 6. That on 8.7.1986, appeal was filed by the defendant-appellant before the learned District Judge, Sirohi." 6. 4. That on 30.6.1986, an application for obtaining the certified copies of the judgment and decree dated 5.5.1986 was filed by the defendant-appellant. 5. That certified copy of the judgment and decree dated 5.5.1986 was delivered to the defendant-appellant on 8.7.1986. 6. That on 8.7.1986, appeal was filed by the defendant-appellant before the learned District Judge, Sirohi." 6. The learned District Judge, from the above dates, has come to the conclusion that the appeal should have been filed on 30.6.1985 and since it has been filed on 8.7.1986, there is a delay of 8 days in filing the appeal and therefore, he dismissed the appeal of the appellant-defendant by his judgment dated 15.9.1990 treating it time barred, though as per office report dated 9.7.1986, the appeal was found within limitation. 7. In my opinion, the judgment and decree of the learned District Judge dated 15.9.1990 cannot be upheld in any way. 8. There is no dispute that the Courts opened on 30.6.1986 after summer vacation and on that day, the appellant-defendant presented an application for obtaining the certified copy of the judgment and decree dated 5.5.1986 passed by the learned Civil Judge, Sirohi and the certified copy of the said judgment and decree was given to him on 8.7.1986. The judgment and decree were passed by the learned Civil Judge, Sirohi on 5.5.1986 and from 5.5.1986, 30 days expires on 4.6.1986 and on that day, there were summer holidays, therefore, this period expires on 29.6.1986 and on reopening day of the Courts, is on 30.6.1986 an application has been filed by the defendant-appellant for obtaining certified copy of the judgment and decree dated 5.5.1986. 9. According to Section 4 of the Limitation Act, 1963 (hereinafter referred to as 'the Act of 1963), where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court re-opens. 10. I may state here that during the summer vacation, it was not necessary for the appellant-defendant to file an application for obtaining certified copy of the judgment and decree, but it was necessary for him to file it on the reopening day and the same has been done by the defendant-appellant in this case. 11. 10. I may state here that during the summer vacation, it was not necessary for the appellant-defendant to file an application for obtaining certified copy of the judgment and decree, but it was necessary for him to file it on the reopening day and the same has been done by the defendant-appellant in this case. 11. According to Section 12 of the Act of 1963, time requisite for obtaining certified copy of the decree, order etc. shall be excluded. 12. Thus, the period from 30.6.1986 to 8.7.1986 should be excluded. From this point of view also, no question arises that the appeal was filed by the defendant- appellant beyond time. 13. The findings of the learned District Judge, Sirohi are totally perverse and against the provisions of the Act of 1963 and the observations of the learned District Judge, Sirohi that the application for condoning delay has been filed later on, have no bearing since the defendant-appellant was not at all required in law to file such application as the appeal was in limitation from all points of view.For the aforesaid reasons, this second appeal of the appellant-defendant is allowed and the judgment and decree dated 15.9.1990 passed by the learned District Judge, Sirohi are set aside holding that the appeal which was filed by the defendant- appellant in the Court of District Judge, Sirohi is within limitation. The learned District Judge, Sirohi is directed to decide the appeal of the appellant-defendant afresh on merits expeditiously since a long time passed. The parties are directed to appear before the learned District Judge on 17.7.2000. No order as to costs.Appeal allowed. *******