G.R. Majithia, J. - (1.) THIS appeal is directed against the order of the Additional District Judge, Narnaul dated December 5, 1987 refusing to recall his ex parte judgment and decree passed in Civil Appeal No. 300 of 18 -3 -1981 on May 16, 1986.
(2.) THE FACTS: The Respondents (hereinafter referred to as the Plaintiffs) filed a suit for permanent injunction restraining the Appellants (hereinafter referred to as the Defendants) from interfering in their peaceful possession on the property in dispute. The suit was dismissed by the Subordinate Judge, Mohindergarh vide judgment and decree dated May 16, 1986. The Plaintiffs challenged the judgment and decree of the trial court in first appeal before District Judge, Mohindergarh which was heard and allowed in the absence of the Defendants. They moved an application for recalling the ex parte judgment. The same was dismissed giving rise to the instant appeal. Application which was registered as Civil Misc. No. 68 of 1986 was moved on September 25, 1986 for recalling the ex parte judgment and decree inter -alia on the following grounds: (i) The appeal filed by the Plaintiff/applicant was beyond limitation. (ii) Respondent No. 1 Ram Bux died on February 23, 1985 and the application to bring on record his legal representatives was filed on March 29, 1985. (iii) The applicant came to know of the ex -parte judgment and decree passed by the Additional District Judge on August 29, 1986. (iv) The applicant approached his lawyer Mr. R.S. Yadav, Advocate, Mohindergarh to know about the fate of the case and on not getting any suitable reply, he rushed to Narnaul and learnt that the appeal was decided on May 16, 1986. The applicant applied for a certified copy of the judgment and decree on August 29, 1986 which was prepared on September 18, 1986 and delivered on September 20, 1986 and the application was moved on September 25, 1986. The application is supported by an affidavit. In reply to the application, the Plaintiff admitted that along with the appeal, an application for condonation of delay was also filed but they were not aware whether the application was allowed. However, the fact that the appeal was decided on merits, an inference could be drawn that the delay was condoned. It was also admitted that Ram Bux died on February 23, 1985 and that the application for bringing on record his legal representatives was filed on March 25, 1983. The other pleas is taken in the application were controverted
(3.) THE approach of the learned Additional District Judge, Narnaul in dis allowing the application for recalling the ex parte judgment and decree is unsustainable in law. If the appeal was filed beyond limitation, it was imperative for the Appellate Court to dispose of the application under Section 5 of the Limitation Act. Admittedly, the appeal was filed beyond limitation and was accompanied by an application Under Section 5 of the Limitation Act. Notice was issued in the application only and could not be issued in the main appeal. The appeal could only be entertained after the application Under Section 5 of the Limitation Act had been allowed. The learned Appellate Judge, for the reasons not apparent, did not dispose of the objection to the maintainability of the appeal in the impugned order. Both the parties to the lis did not join issue on this point that the appeal was filed beyond limitation and it was accompanied by an application under Section 5 of the Limitation Act. In the light of these positive avernments. it was imperative for the Appellate Judge to dispose of this plea and failure to do so has resulted in mis -carriage of justice. The principal contesting Respondent in the first Appellate Court had died during the pendency of the appeal. An application for bringing on record the legal representatives of the deceased was filed but no order was passed on that application. It is unfortunate that First Appellate Court did no understand the responsibility cast on it by the Statute. Even otherwise on merits, there appears to be ring of truth in the assertion made by the Defendants. They had engaged a counsel practising at Mohindergarh in District Narnaul. It appears that the counsel did not prosecute the appeal diligently. Difficulties do arise when an outside counsel is engaged but the parties cannot be made to suffer for the fault of their counsel. The conduct of the counsel for not putting in appearance may bordering mis -conduct for which remedy lay somewhere else. However, the court cannot permit an innocent party to suffer merely because his chosen Advocate defaulted.;