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GUJARMAL AND ORS versus SOBHAGYAMAL JAIN

High Court of Rajasthan

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GUJARMAL AND ORS v SOBHAGYAMAL JAIN - CSA Case No. 02681 of 2006 [2006] RD-RJ 2988 (29 November 2006)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

ORDER

S.B. Civil Second Appeal No.02681 of 2006.

Gujarmal & Others Vs. Shobhagya Mal Jain,

Date of Order ::: 29/11/2006

Hon'ble Mr. Narendra Kumar Jain, J.

None present for appellants.

By the Court :

Heard learned counsel for the appellants.

The registry has reported that this appeal is barred by 12 days, and no application under Section 5 of the Limitation Act has been preferred along with memorandum of appeal, for condonation of delay in filing second appeal. The appeal was filed in this

Court way-back on 07.08.2006.

Sub-section (1) of Section 3 of the Limitation

Act, 1963, provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Sub- section (1) of Section 3 of the Limitation Act, 1963, is reproduced as under:-

"3. Bar of limitation.- (1)

Subject to the provisions contained in sections 4 to 24

(inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence."

Procedure for filing the appeal is prescribed under Order 41 of the Code of Civil Procedure, 1908

(for short, 'CPC'). Rule 3-A of Order 41 of the CPC was inserted with effect from 1st of February, 1977, which provides that 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.

Sub-Rule (1) of Rule 3A of Order 41 of the CPC is reproduced as under:-

"3A. 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."

Before filing an appeal it is a duty of the learned counsel to calculate the period of limitation provided for filing the appeal and in case the period of limitation for filing the appeal has already been expired then the memorandum of appeal should be presented duly accompanied by an application for condonation of delay as required under Rule 3A of Order 41 of the CPC.

The learned counsel for the appellants ought to have filed an application for condonation of delay along with the memorandum of appeal itself, but, in the present case, he has not filed the application for condonation of delay even till date.

Consequently, the appeal is dismissed being barred by limitation.

(Narendra Kumar Jain) J.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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