RADHESHYAM AGARWAL Vs. RAMWATER DEEPAK KUMAR PROPERTY

JUDGEMENT

(1.) This is a revision under section 115, CPC. against the judgment and decree dated 19.3.94 of the Additional District Judge, Kamrup, in TA No. 4/91 confirming the judgment and decree dated 6.7.91 passed by Assistant District Judge No. 1, Guwahati, in TS No. 149/90.

(2.) The brief facts of the casse are that petitioner was a tenant in respect of suit premises covered by Holding Nos. 34 and 34 A in Ward No. 19 of the Gauhati Municipal Corporation. The opposite party filed TS No. 149/90 in the Court of the Assistant District Judge No. 1, Gauhati, for ejectment of the defendant-petitioner and for recovery of area rent of Rs. 8,610/- and Rs. 1,844.35 as electricity charges. The suit was decreed ex-parte on 6.7.91 by the learned Assistant District Judge No. 1, Gauhati. The defendant petitioner filed an appeal against the said ex-parte judgement and decree before the Additional District Judge, Kamrup, on 16.8.91 which was numbered as TA No. 4/91. The petitioner also filed an application under section 5 of the Limitation Act, 1963 before the learned District Judge, Kamrup, stating therein that the defendant-petitioner came to know about the r ex parte judgment and decree dated 6.7.91 only on 15.7.91 and counted from 15.7.91 the appeal was filed within rime but as abundant caution, the defendant petitioner has filed an application for condonation of delay in filing the appeal. The appeal was taken up for hearing by the Additional District Judge, Gauhati on 14.3.94 and by judgment dated 19.3.94, the Additional District Judge, Guwahati, held that limitation for filing the appeal would run from the date of decree and not from the date when the defendant petitioner came to know about the ex pate judgment and decree. Regarding application under section 5 of the Limitation Act for condonation of delay in filing the appeal, the learned Additional District Judge was of the opinion that there was no reason to condon the delay in filing the appeal and accordingly rejected the said application-

(3.) Mr. Bhattacharjee. learned counsel for the petitioner, cited before me the decision reported in AIR 1981 All 834, wherein a Division Bench of the Allahabad High Court has held that although under Article 116(a) of the Limitation Act limitation would normally commence from the "date of decree or order" if the judgment is not pronounced in the presence of the parties or their counsel or no notice of the judgment was given to the parties, limitation would commence from the date the appellant acquired the knowledge of the decree or order challenged in the appeal. Alternatively, Mr. Bhattacharjee submitted that in the present case, the petitioner had filed an application under section 5 of the Limitation Act before the learned Additional District Judge, Gauhati, stating therein that he had knowledge of the decree only on 15.7.91 and that he was of the view that limitation would commence from the date of his knowledge of the judgment and decree. This explanation furnished by the petitioner in the application under section 5 of the Limitation Act was sufficient explanation for the delay of 9 days in filing the appeal,. Accordingly, the learned Additional District Judge Gauhati should not have dismissed the appeal on the technical ground of limitation, but should have decided the appeal on merits.