Decided on November 26,1993

Roop Krishan Ganjoo Appellant
P K Ganjoo Respondents


- (1.)THIS is an application for condonation of delay in filing the revision petition preferred by Roop Krishan Ganjoo (defendant -tenant before the trail court) against the order of City Judge Jammu dated 3.4.1993, whereby the defendant -tenant was ordered to make payment of arrears of rent amounting to Rs.8475/ - to the respondent P.K. Ganjoo, (Plaintiff before the trial court), within a period of 15 days from the date of the order passed by the trial court and also to deposit future rent month to month failing which his defence was ordered to remain struck off.
(2.)IT has been avarred in the application that under the bonafide advice tendered to the defendant -tenant by his counsel Mr. Anoop Koul, an appeal was preferred before the Additional District Judge Jammu against the said order. Since the order to trial court was not appealable, the appeal was rejected as not maintainable. It was, therefore, prayed that time spent in prosecuting the appeal under bonafide belief, be condoned, for the appeal was preferred under the mistaken advice of the counsel for the defendant -tenant, in the court of Additional District Judge, Jammu, that the delay is of 51 days and the same is neither intentional nor deliberate.
(3.)IN this regard objections were filed by the respondent/ plaintiff, wherein the application has been controverted on the ground that the defendant -tenant has not filed any affidavit of his counsel Mr. Anoop Kaul to the effect that under bonafide belief he had advised the defendant -tenant to file an appeal in the court of learned Additional District Judge, Jammu. The said lawyer is an Advocate of more than 15 years standing and is practicing in High Court as well. The mistake is not one of facts but is of law which clearly shows that neither the Advocate nor the defendant -tenant has acted with due care and caution. Although the present counsel Mr. Varinder Bhat was informed of such a defect by the Additional District Judge, Jammu, but inspite of that the defendant -tenant did not chose to withdraw the matter and pursued it till it was disposed of on merits.
Heard learned counsel for the parties and also bestowed my thoughtful consideration over the record on the file.

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