RAMESHWARI DEVI Vs. SANSAR CHAND

JUDGEMENT

(1.) ORDER :- The appeal is directed against the decision of the learned District Judge, Shimla, refusing to condone the delay in presenting an appeal on the ground that sufficient cause, within the meaning of Section 5 of the Limitation Act, 1963, was not made out and consequently dismissing the appeal.

(2.) The appellants are the original plaintiffs. The suit, out of which the appeal arises, was dismissed on April 30, 1975. At the time when the judgment was pronounced, though the learned counsel for the appellants was present, the appellants themselves were not present. The appellants applied for the certified copies of the judgment and the decree on June 2, 1975, and on October 30, 1975 respectively and they were delivered to them on July 22, 1975 and on December 3, 1975, respectively. Be it stated that the case of the appellants, which is supported by the material on record, is that a certified copy of the decree was also applied for on June 2, 1975 but they were informed at the time of the delivery of the certified copy of the judgment on July 22, 1975, that the decree sheet having not been drawn up it was not possible to supply to them a certified copy thereof. The appellants thereupon made an application to the trial court on July 23, 1975, praying that the decree sheet be prepared. Pursuant thereto the decree sheet appears to have been prepared on July 25, 1975 but the actual date on which it was signed by the learned trial judge is not capable of being determined on the material on record. After the decree sheet was accordingly prepared, a fresh application for a certified copy thereof was made by the appellants on October 30, 1975 and delivery thereof was given to them on December 3, 1975. The appeal was presented on December 4, 1975. Against the background aforesaid, even taking the worst view against the appellants, the delay in the presentation of the appeal admittedly extends to a period of about six months.

(3.) Along with the appeal, the appellants made an application for the condonation of delay duly supported by an affidavit sworn by the first appellant. The application stated that the first appellant was a widow of advanced age and that the second appellant, who is her daughter, was in a family way during the period when the case was ripe for decision in the trial Court. Under those circumstances, the appellants were unable to contact their counsel and they could not keep in touch with the progress of the suit. The appellants learnt about the dismissal of the suit only when the husband of the second appellant met the counsel on June 2, 1975 and was informed about the dismissal of the suit According to the appellants, there was, therefore, sufficient cause for the condonation of delay. Be it stated that the averments made in the application were not contested by the respondents by placing on record an affidavit or otherwise.