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2004 DIGILAW 669 (PNJ)

Bhagwan Das v. Sudershan Kumar

2004-07-07

VINEY MITTAL

body2004
Judgment Viney Mittal, J. 1. Defendant Nos. 2 to 5 have approached this Court through the present regular second appeal. 2. The grievance made is against the judgment and decree dated May 14, 1980 passed by the learned Additional District Judge whereby the appeal filed by the defendants against the judgment and decree dated April 29, 1978 passed by the learned trial Court, has been dismissed, as barred by limitation, 3. A suit for permanent injunction was filed by plaintiff Sudarshan Kumar against the defendants for restraining them from constructing the drain and road and interfering in the possession of the plaintiff. A further prayer was made to restrain the defendants from interfering in the construction of the wall marked ABC in the house No. 605/15 owned by the plaintiff. 4. The defendants contested the suit. However, vide judgment and decree dated April 29, 1978 the learned trial Court decreed the aforesaid suit filed by the plaintiff. 5. The defendants applied for obtaining the certified copy of the judgment and decree passed by the learned trial Court on May 2, 1978. The copy was prepared by the copying agency and the same was ready for delivery on August 8, 1978. After obtaining the aforesaid certified copy, the appeal was filed by the defendants before the learned first appellate Court on September 6, 1978. It is not in dispute that September 5, 1978 was a Court holiday. 6. Although from the perusal of the record, it is apparent that the appeal preferred by the defendants before the learned first appellate Court was within the period of limitation inasmuch as the same could have been filed upto September 5, 1978 but the said date being holiday, the appeal was preferred on September 6, 1978, still by way of abundant caution the defendants filed an application under Section 5 of the Limitation Act for condonation of delay. The learned Additional District Judge vide his impugned judgment and decree has refused to condone the delay and as such dismissed the appeal as barred by limitation. 7. The defendants have now felt aggrieved and have approached this Court through the present regular second appeal. 8. I have heard Mr. Vinod Khunger, the learned counsel for the defendant-appellants and Mr. A.K.Khunger, the learned counsel for respondent No. 1 and with their assistance have also gone through the record of the case. 9. 7. The defendants have now felt aggrieved and have approached this Court through the present regular second appeal. 8. I have heard Mr. Vinod Khunger, the learned counsel for the defendant-appellants and Mr. A.K.Khunger, the learned counsel for respondent No. 1 and with their assistance have also gone through the record of the case. 9. At the outset, it is apparent that following substantial questions of law arise for consideration in the present appeal: "(a) As to whether the appeal filed by the defendants before the learned first appellate Court, being within limitation, could have been dismissed by the learned first appellate Court as barred by limitation? (b) As to whether a party was well within its rights to file the appeal on the last date of limitation or was required to show any sufficient cause for not filing the appeal upto last date of limitation?" 10. From the narration of facts, it is apparent that the defendants could have filed the appeal before the learned first appellate Court upto September 5, 1978. It is also not in dispute that September 5, 1978 was declared a Court holiday and as such the defendants were well within their rights to file the first appeal on the next date of opening in September 6, 1978. In this view of the matter, the appeal filed by the defendants before the learned first appellate Court could not have been treated to have bee barred by limitation. It appears that the learned first appellate Court has also been influenced with the fact that the defendants did not choose to file the appeal immediately after August 8, 1978, the date on which copy was ready for delivery, but waited for the last date of limitation. This approach of the learned first appellate Court is totally erroneous. The appellant is well within his fights to file the appeal within the period of limitation and no explanation can be sought from such a party as to why it had waited till the last date of limitation. In view of the aforesaid discussion, both the questions (a) and (b), noticed above, are answered in favour of defendant-appellants. Accordingly, the present appeal is allowed. The judgments and decree of the learned first appellate Court are set aside. In view of the aforesaid discussion, both the questions (a) and (b), noticed above, are answered in favour of defendant-appellants. Accordingly, the present appeal is allowed. The judgments and decree of the learned first appellate Court are set aside. The matter is remitted back to the learned Additional District Judge, Ferozepur for fresh decision of the appeal filed by the defendants on merits of the controversy.