N.K. Kapoor, J. - (1.) THIS is plaintiffs regular second appeal against judgment and decree of the Additional District Judge, Gurgaon, whereby appeal filed against judgment and decree of the trial Court was dismissed on the ground of limitation.
(2.) BRIEFLY put, plaintiffs filed suit for permanent injunction that they are owners in possession of a plot and land marked ABC in the site plan attached with the plaint and had been using the same as owners since immemorial from the time of their forefathers. They further averred that with the intent of raising construction on the same and with a view to seek permission they applied to the Municipal Committee for sanctioning of the plot. Before the plaintiffs could raise construction, defendant Committee threatened the plaintiffs that they will be dispossessed which impelled the plaintiffs to file the present suit. On the basis of pleadings of the parties a number of issues were framed by the trial Court which need not be given in details as the matter is being disposed of with regard to the point of limitation alone. Trial Court dismissed the suit of the plaintiffs vide judgment dated November 23, 1978. Appeal was filed in the Court of Senior Sub Judge, Gurgaon on 16.1.1979. This appeal was withdrawn and transferred to the Court of Additional District Judge, Gurgaon. On 19.12.1979 the Additional District Judge, Gurgaon came to the conclusion that appeal should have been filed in the Court of District Judge and not in the Court of Senior Sub Judge and so the memorandum of appeal was ordered to be returned to the appellants for presentation in the Court of competent jurisdiction on 24.12.1979. The appeal was re -filed in the Court of District Judge on the same day i.e. 24.12.1979. It was accompanied by an application under Sections 5 and 14 of the Limitation Act for seeking condonation of delay in filing the appeal and excluding the time bonafidely spent in a Court which from the defect of jurisdiction could not entertain the same.
(3.) LEARNED Additional District Judge, however, did not find sufficient ground for condoning the delay and hence dismissed the appeal on April 22, 1980.;