HARI SINGH AND ORS. Vs. KAILASH AND ORS.

JUDGEMENT

(1.) Shri H.K. Shukla, Advocate for the appellants.

(2.) The appeal, as per office report is barred by 460 days.

(3.) The averments made in the application are to the effect that against the impugned judgment and decree passed by first Appellate Court dated 24-7-2008, appellant had come to Gwalior for filing the appeal and had met with Advocate Shri Ramesh Gaur in District Court Campus Gwalior on 16th August, 2008. On assurance being given by said Advocate that appeal shall be filed promptly, the appellant handed over entire papers along with impugned judgment to him. Thereafter, he came back to his village. Thereafter, there was no communication from the counsel though plaintiffs/appellants were making efforts to contact the counsel on telephone to enquire about the progress of the case. According to plaintiffs, the counsel at later stage, informed him that appeal had been filed and stay application was kept pending by the High Court till the record is received. As such appellants were under the impression that appeal had been filed and the application for stay was pending consideration. But all of a sudden, appellants received summons from the executing Court calling upon them to remain present before this Court on 27-1-2010. Thereafter, appellants tried to contact their counsel Shri Ramesh Gaur, but there was no response from his end. Mobile phone of the counsel was also not working. Thereafter, appellant-Mohar Singh came to Gwalior on 4-1-2010 to enquire about the pendency of appeal. It was found that the counsel had died, therefore, appellants made a request to Shri H.K. Shukla, Advocate to enquire about the status of the appeal and on enquiry it was found that no such appeal was filed or pending before the High Court. On advice of Shri Shukla, Advocate, appellant came back to his village on 8-1-2010 to obtain certified copy of the impugned judgment which was delivered to him on 12-1-2010. Thereafter, the appellant again contacted Shri Shukla, Advocate at Gwalior. The appellant was advised to bring photocopy of the plaint, written statement and other relevant papers from the local counsel at Raghogarh. Thereafter, the appellant again approached his Advocate at Raghogarh to hand over old available file papers, which could be collected by appellant from Raghogarh only on 22-1-2010. Thereafter, appellant came to Gwalior. Appeal was drafted on 23-1-2010, and the same was filed before this Court on 25-1-2010.