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2023 DIGILAW 1275 (RAJ)

Col. Shyam Singh (Deceased) v. Mewaram S/o. Shri Parmoli (Deceased)

2023-07-04

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : 1. This civil second appeal, which is reported to be time barred by 574 days, is accompanied with an application under Section 5 of the Limitation Act. 2. It is stated in the application that counsel for the appellants did not inform them about the judgment dated 16.05.2019 and they could not contact their counsel since March, 2020 on account of lockdown in the country due to Covid-19 situation. It is averred that they contacted their counsel in the month of January, 2021 and after obtaining the certified copy of the impugned judgment and decree, they have immediately filed this civil second appeal. 3. Reiterating the averments made in the application, the learned counsel for the appellants submits that the delay in filing the appeal is bona fide and not intentional and hence, deserves to be condoned. 4. Heard. Considered. 5. The reasons assigned in the application under Section 5 of the Limitation Act seeking condonation of inordinate delay of 574 days are far from satisfactory. No reason has been assigned as to why the appellants did not contact their counsel after the impugned judgment and decree was passed on 16.05.2019, for a very long period. It is also not reflected from the application as to when they came to know of the dismissal of the civil first appeal vide judgment dated 16.05.2019 and in what manner. In view thereof, the application does not merit acceptance. 6. However, in the interest of justice, learned counsel for the appellants has been heard on merit of the civil second appeal which is preferred against the judgment and decree dated 16.05.2019 passed by the learned Additional District Judge No.1, Bharatpur whereby, while dismissing the civil first appeal preferred by the appellants/plaintiffs, the judgment and decree dated 14.10.2017 passed by the learned Civil Judge No.3, Bharatpur dismissing the suit for mandatory and permanent injunction, have been affirmed. The plaintiffs filed the suit with the averments that the defendants have encroached upon the public way. Recording a categorical finding that subject construction existed since the year 1976 and that there is a decree of permanent injunction restraining the local authorities not to disposses them without following due process of law by a competent Civil Court in favour of the defendants holding them to be in peaceful and settled possession of the subject land. Recording a categorical finding that subject construction existed since the year 1976 and that there is a decree of permanent injunction restraining the local authorities not to disposses them without following due process of law by a competent Civil Court in favour of the defendants holding them to be in peaceful and settled possession of the subject land. The findings have been affirmed by the learned Appellate Court re-appreciating the evidence on record. Learned counsel for the plaintiffs could not satisfy this Court that these concurrent findings of facts suffer from any illegality, infirmity or perversity so as to warrant interference of this Court under Section 100 CPC. 7. In view thereof, the application under Section 5 of the Limitation Act as also the civil second appeal are dismissed being devoid of merit. 8. The stay application also stands disposed of.