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Judgment
Hemant Gupta, J.—As per the office report, respondent Nos.3, 4 and legal representatives 1 to 5 of respondent No. 1 have refused to
accept notice. Since five legal representatives of respondent No.1 have been served, the estate of respondent No.1 is sufficiently represented.
The plaintiff is in revision petition aggrieved against the order passed by the learned first Appellate Court on 1.4.2004, whereby delay of about
nine months in filing the appeal was not condoned.
The suit for permanent injunction filed by the plaintiff was dismissed on 5.8.2002. The plaintiff applied for certified copy of the said judgment on
26.5.2003 and filed the appeal on 30.5.2003. It is the case of the plaintiff that he came to know about the dismissal of the suit only on 24.5.2003
through some villagers and rushed to his counsel on 25.52003.
The learned first Appellate Court declined to condone delay on the ground that even the copy of the judgment was applied for after more than
nine months and that it cannot be believed that a litigant shall not enquire about the case for nine months and, therefore, declined to condone the
delay in filing the appeal.
The fact that the certified copy of the judgment was not applied for soon after the judgment and decree was passed, shows that the petitioner
was not made aware of the judgment and decree. Therefore, mere fact that the copy of the judgment was not applied for, will not be a ground to
decline the condonation of delay in filing the appeal. There is nothing on record to show that by delaying the filing of appeal, the plaintiff has to gain
anything. Therefore, I am of the opinion that the impugned order passed by the learned first Appellate Court in refusing the condonation of delay,
cannot be sustained in law.
Consequently, the present revision petition is allowed. The order dated 1.4.2004 is set aside and the delay in filing the appeal is condoned. The
learned first Appellate Court is directed to decide the appeal in accordance with law, expeditiously.
Parties through their counsel are directed to appear before the learned first Appellate Court on 6.3.2006, for further proceedings in accordance
with law.