KALAWATI versus THE IX ADDL. CIVIL JUDGE & OTHERS

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Kalawati v. The Ix Addl. Civil Judge & Others - WRIT - C No. 24059 of 1987 [2005] RD-AH 7640 (16 December 2005)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 31

Civil Misc. Writ Petition no. 24059 of 1987

Smt. Kalawati vs. The IXth Addl. Civil Judge & ors.

...

Hon'ble Bharati Sapru, J.

I have heard learned counsel for the petitioner, learned counsel for the respondents and learned standing counsel.

The present writ petition has been filed against an order dated 26.8.1987 by which an application made by the petitioner under section 5 of the Limitation Act has been dismissed on the ground that it was five days beyond time and sufficient explanation was not given by the applicant to explain the delay of five days.

I have perused the order as well as the application under section 5 of the Limitation Act. Admittedly the delay was only five days. The explanation given is that the litigant was under the impression due to legal advice that the limitation in the said matter was available upto 31.3.1984 and that appeal which was being filed within time.

It appears that the litigant filed the appeal on 31.3.1984 whereas according to the calculation of the court below, the limitation had already expired on 26.3.1984. The litigant had filed appeal on the advice of the lawyer under the bonafide belief that the limitation would exhaust on 31.3.1984. Even otherwise the delay of five days cannot be said to be fatal as it is not such huge delay.

In view of the above, I feel that the litigant should be given an opportunity that his appeal be heard on merits. The impugned order dated 26.8.1987 is therefore set aside. The court below is directed to restore the appeal and hear the matter on merits.

As it is a very old matter of the year 1979, it is expected that the appellate court restores the appeal immediately for being heard on merits and shall conclude the matter preferably within a period of one year. While hearing the matter on merits, the appellate court shall not grant any unreasonable adjournment to either side.

The writ petition is, therefore, dismissed but there shall be no order as to costs.

Dated  16.12.2005

Rk.24059.87

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