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Judgment
M.M. Punchhi, T. (Oral)
We have heard Mr. Doabia, learned counsel for the Municipal Committee. No one has put in appearance for the Commissioner, though served. Having regard to controversy and the averment made by the petitioner in the writ portion, we are of the view that the Commissioner, Ferozepur Division, Ferozepur, has taken rather a hypertechnical view of the law of limitation. It cannot be forgotten that wherever appellate power is conferred & a period of limitation provided for moving the appellate Court, the provision regarding extension of the period of limitation in the appellate cause is the normal rule. Even if it is not specifically provided, section 5 of the Limitation Act comes to the rescue of the appellant. In the recent times, there has been noticeable elasticity in the law regarding limitation in appellate causes. At the state it is not a question of jurisdiction but rather a mixed question of law and fact. The question of jurisdiction only arises in the original causes where period of limitation for moving a Court is fixed and which normally is not extendable. But here since it was an appellate cause, the Commissioner would have been well advised to extend the period of limitation when adequate cause have been shown. For this reason we allow the writ petition, quash the impugned order Annexure P4 and remit the case back to the Commissioner, Ferozepur Division, Ferozepur, to redecide the appeal of the petitioner, after its formal admission, on merits of the case after giving the petitioner an opportunity of being heard.
Parties through their counsel are directed to put in appearance before the Commissioner on October 25, 1989.