- (1.) THE present petition has been filed by the petitioner-original defendant-appellant challenging the order dated 15.11.02 passed by the Addl. District & Sessions Judge (Fast Track) No.1, Karauli (hereinafter referred to as 'the appellate court') whereby the appellate court has dismissed the appeal of the petitioner on the ground of limitation.
(2.) THE brief facts of the case are that the respondent No.2-original plaintiff has filed the suit being No. 98/01 in the court of Civil Judge (J.D.), Karauli, (hereinafter referred to as 'the trial court') for recovery of rent and possession of suit premises against the petitioner-defendant under the provisions contained in Rajasthan Premises (Control of Rent and Eviction ) Act, 1950 (hereinafter referred to as 'the said Act') on the ground that the petitioner had failed to pay the rent for the period from 15.10.99 to 15.5.01. The petitioner resisted the said suit by filing the written statement. The trial court thereafter determined the provisional rent vide its order dated 27.11.01, however, the petitioner failed to pay the said rent within the prescribed time limit. The respondent No.2 therefore had filed an application under Section 13(5) of the said Act, requesting the court to strike off the defence of the petitioner. The said application was also resisted by the petitioner by filing the reply. The trial court vide the order dated 15.11.02 allowed the said application filed by respondent No.2 and struck off the defence of the petitioner. Being aggrieved by the said order, the petitioner preferred an appeal before the appellate court, alongwith the application seeking condonation of delay under Section 5 of the Limitation Act. The petitioner had also filed an application under Order XLI Rule 27 of CPC before the appellate court seeking permission to produce the additional documents on record, however the said application was rejected by the appellate court vide its order dated 4.9.09. The appellate court thereafter rejected the application of the petitioner seeking condonation of delay occurred in filing the appeal vide its order dated 8.9.09. Being aggrieved by the said order, the present petition has been filed under Article 227 of the Constitution of India.
(3.) IT has been submitted by the learned counsel Mr. G.P. Kaushik for the petitioner that the appellate court should have condoned the delay in the interest of justice inasmuch as the petitioner was not keeping good health during the period of default and also thereafter and, therefore could not file the appeal within the prescribed time limit. He also submitted that the petitioner had paid the advance rent at the time of taking the premises on rent in the year 1994 and that if the said amount was adjusted against the arrears of rent, there would be no amount due to be paid to the respondent No.2. He also submitted that the petitioner should have been given one opportunity to challenge the order of the trial court in appeal on merits.;