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2011 DIGILAW 433 (RAJ)

Bansi Lal v. Executive Officer, Municipal Council Niwai, District Tonk

2011-02-24

NARENDRA KUMAR JAIN

body2011
Hon'ble JAIN, J.—Plaintiffs suit for permanent and mandatory injunction has been dismissed by both the Courts below, therefore, this second appeal has been preferred on behalf of plaintiff. 2. There is delay of 30 days in filing the second appeal, therefore, an application under Section 5 of the Limitation Act has also been filed, wherein it is submitted that the judgment of Appellate Court was passed, on 23.3.2007, application for certified copy of judgment was filed on 24.3.2007 and the same was received on 3.4.2007. Thereafter, appellant contacted his Counsel on 18.4.2007, who opined him to file an appeal. The said Counsel also informed that period of limitation for filing appeal is 90 days from the date of receipt of certified copy of the judgment. Appellant took advise from 2-3 more Counsel in the month of May, 2007. Thereafter, in the month of June, 2007, he fell seriously ill and could not contact any Counsel at Jaipur. Soon after recovery from illness, he contacted the Counsel for appellant on 16.7.2007 and filed this appeal on 3.8.2007. 3. From the contents of the application, it is clear that certified copy of the judgment was delivered on 3.4.2007. No details have been given mentioning the names of Counsel, from whom the appellant took advise for filing appeal. Nothing has been mentioned as to when appellant fell seriously ill. No specific date or specific name of disease has been mentioned. Name of doctor has also not been mentioned and medical certificate has also not been enclosed with the application. 4. In these circumstances, I am satisfied that no sufficient cause has been made out for condonation of delay and application under Section 5 of the Limitation Act deserves to be dismissed and is hereby dismissed. 5. I have also examined the merits of the case and after close scrutiny of the reasons assigned by both the Courts below for dismissal of the suit of appellant in the light of submissions of learned counsel for appellant, I find that all the questions involved in the present case are relating to questions of facts and there is concurrent finding of facts by both the Courts below, which cannot be interfered with by this Court in second appeal under Sec. 100 CPC. No substantial question of law is involved in this second appeal. 6. No substantial question of law is involved in this second appeal. 6. Consequently, the second appeal is dismissed being barred by limitation as well as on merits in limine.