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BRIJ LAL v BALDEV SINGH @ DEV SINGH - CMA Case No. 04769 of 2004  RD-RJ 451 (22 February 2005)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
CIVIL MISC. APPEAL No. 04769 of 2004
BALDEV SINGH @ DEV SINGH
Mr. RK SINGHAL, for the appellant / petitioner
Date of Order : 22.2.2005
HON'BLE SHRI N P GUPTA,J.
Heard learned counsel for the appellant at length.
The only ground given in the application under Sec.5 of the
Limitation Act is that the Advocate did not inform about the dismissal of the petitioner's application filed under O.9 R.13 CPC.
In my view, on the face of sequence of events of the present case, this explanation cannot be believed, inasmuch as, an exparte decree was passed in the suit, whereupon the appellant filed application under O.9
R.13 CPC, which was dismissed by the trial court. Against that order, appeal was filed before this court, raising specific plea that the case was fixed once for evidence, then ignoring that order fixing the case for leading evidence, the application was dismissed. That contention was accepted, and case was remanded. This remand order was passed by this court on 21.2.2002, and thereafter case was taken up by learned trial court. The appellant was again summoned for 30.7.02. Thereupon, he appeared on that day after service of notice, and evidence of the appellant were recorded on 22.10.02, while impugned order was passed on 28.1.2003 itself. Thus the matter was going on in continuity, and there was no occasion for the appellant to lie low for such a long time, and not taking care of his litigation.
In these circumstances, the theory propounded in the application cannot be believed. The application filed under Sec.5 is, therefore, dismissed. Consequently, the appeal is also dismissed as time barred.
( N P GUPTA ),J. /Srawat/
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