Bant Singh vs Ujagar Singh

J.V. Gupta, J.—This petition is directed against the order of the Additional District Judge, Ludhiana, dated 12th March, 1985, whereby the appeal was dismissed as barred by time.

The Plaintiff-Respondent Ujagar Singh filed a suit for the recovery of Rs. 13,600/-. The suit was decreed by the trial Court on 25th July, 1984. Application for obtaining the certified copies of the judgment and the decree was filed on 1st August, 1984. However, the same was returned as the file was not traceable. The application was re-filed on 4th September, 1984. The certified copies were made available an 13th September, 1984, The date of preparation of the copies is shewn to be 12th September, 1984. The same were filed in Court on 13th September, 1984 However, before the certified copies could be made available, the Defendant filed the appeal on 1st September, 1981, by filing uncertified copies with the memorandum of appeal as he wanted to obtain stay order. When certified copies were filed on 13th September, 1984, he moved an application u/s 5 of the Limitation Act for condonation of delay. This application was contested on behalf of the Plaintiff Respondent. The learned Additional District Judge took the view that since the appeal was filed after 30 days from the date of the decree of the trial Court dated 25th July, 1984, it was prima facie barred by time and, therefore, the application u/s 5 of the Limitation Act filed along with the certified copies was not maintainable Reference was made to the provisions of Order 41 Rule 3-A, CPC Code, which read as under:

3 A. Application for condonation of delay-

(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the Appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Courts sees no reason to reject the application without the issue of a notice to the Respondent, notice thereof shall be issued to the Respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 3, as the case may be.

(3) Where an application has been made under Sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does net, after hearing under Rule 11, decide to hear the appeal.

Ultimately, the appeal was dismissed as barred by time.

After hearing the Learned Counsel for the parties, I am of the considered view that the whole approach of the learned Additional District Judge was misconceived, wrong and illegal. It is a case where the appeal was filed before the certified copies were made available. The Petitioner-Appellant was entitled to deduct the days for obtaining the certified copies and, thus, could file his appeal within 30 days after deducting those days. Admittedly, the certified copies were made available on 13th September, 1984 and the preparation of the copies is shown on I2tb September, 1984, whereas the appeal was filed on 1st September, 1984, along with uncertified copies. On these facts, provisions of Order 41 Rule 3A, CPC Code, reproduced above, were not attracted at all. On facts narrated above, the question of condonation of delay as such did not arise. The appeal was filed much earlier before the limitation expired. It is unfortunate that the case was not properly argued by the Learned Counsel for the parties before the learned Additional District Judge. The question of limitation was not at all relevant when the appeal was filed on 1st September, 1934, without certified copies.

Consequently, this petition succeeds, the impugned order is set aside and the case is sent back to the District Judge, Ludhiana, for deciding the appeal on merits in accordance with the law. The parties have been directed to appear in his Court on 10th September, 1985. The records be sent back forthwith.