ORDER
J.S. Khehar, J.
1. The challenge in the instant Regular Second Appeal is to the order passed by the lower Appellate Court summarily rejecting the appeal preferred by the appellants on account of limitation.
2. In order to determine whether or not the delay in filing the certified copy of the judgment and decree of the trial court should be a basis for rejecting the main appeal itself on account of limitation, certain facts, which are relevant to determine the controversy in hand, are being noticed hereunder.
3. The trial Court dismissed the suit preferred by the appellants-plaintiffs by an order dated 21.5.1982. On 22.5.1982, the plaintiffs moved an application for supply of a certified copy of the judgment and decree of the trial Court. However, on account of the fact that the appellants-plaintiffs were interested in an injunction, they preferred an appeal before the lower Appellate Court on 28.5.1982 alongwith an application under Order 39 Rules I and II of the Code of Civil Procedure. Since the certified copy of the judgment was not available on the date of filing of the appeal (despite the application having been made for the same), the appellants-plaintiffs attached an uncertified copy of the judgment of the trial Court alongwith the appeal preferred by them on 29.5.1982. It is not a matter of dispute that the copying Agency prepared the certified copy, applied for by the appellants-plaintiffs, on 22.6.1982. For whatever reason the appellants-plaintiffs did not append the same with their appeal till 7.8.1982. The facts disclosed during the course of arguments reveal that the appellants-plaintiffs took the certified copy from the Copying Agency on 7.8.1982 and appended the same with the appeal on the same date i.e. 7.8.1982. There can be no doubt that at the time when the judgment and decree were appended to the appeal on 7.8.1982, the period of limitation stipulated for preferring the appeal had expired, it is on the aforesaid account that an application was moved under Section 5 of the Limitation Act for condonation of delay. The lower Appellate Court did not accept the prayer of the appellants-plaintiffs for condoning the delay. It is in the aforesaid circumstances that the instant appeal came to be preferred against the order passed by the lower Appellant Court on 2.9.1982.
4. In the application filed under Section 5 of the Limitation Act seeking condonation of delay emerging out of the belated filing of the certified copy of the judgment and decree of the trial Court dated 21.5.1982, it is expressly asserted that the applicant did not approach the Copying Agency to obtain a certified copy of the judgment and decree on account of his belief that the Copying Agency would be closed during vacations. In paragraph 5 of the application itself, the applicant also asserted that the counsel for the appellants-plaintiffs had informed him that the certified copy of the judgment and decree of the trial Court could be filed on the date already fixed for appearance i.e. 28.8.1982. Alongwith the aforesaid application dated 28.8.1982, the counsel appearing for the appellants-plaintiffs has filed his personal affidavit acknowledging in paragraph 5 thereof that the delay has been caused due to wrong advice given by him unintentionally. In other words he supports the factual position depicted in paragraph 5 of the application. A separate affidavit has been filed by the appellant reiterating the factual position disclosed in paragraph 5 of the application. A perusal of the impugned order reveals that the respondents-defendants chose not to controvert the factual position asserted in the application for condonation of delay by not filing any reply thereto. In the aforesaid view of the matter, it emerges that the factual position disclosed in paragraph 5 of the application for condonation of delay, supported by the affidavit of the appellants-plaintiffs and that of their counsel, remained unrefuted. On the basis of the aforesaid factual position itself, the lower Appellate Court should have condoned the delay in filing the appeal. A perusal of the impugned order passed by the lower Appellate Court, however, reveals that the facts noticed hereinabove were not at all taken into consideration. It is, therefore, apparent that the lower Appellate Court ignored to take into consideration relevant material while adjudicating upon the application preferred under Section 5 of the Limitation Act for condonation of delay.
5. The reasons noticed in the foregoing paragraph fully justify the claim of the appellants-plaintiffs for condonation of delay in preferring the appeal before the lower Appellate Court.
6. In view of the above, the order passed by the lower Appellate Court dated 2.9.1982 is set aside. The application for condonation of delay is allowed. As a natural consequence thereof, the instant appeal is remanded back to the District Judge, Amritsar, who may decide the same himself, on merits, or assign it to any other competent Court, in accordance with law.
7. Parties, are directed to appear before the lower Appellate Court in person or through counsel on 5.4.20034.
8. Allowed in the aforesaid terms.
