- (1.) THIS is an appeal against the decision of Revenue Appellate Authority, Kota, dated 2. 1. 62, by which he had been pleased to reject the appeal preferred by the appellant as time barred. A bare perusal of the record of the case, as has been conceded by the learned counsel for the respondent as well, goes to show that the learned Revenue Appellate Authority has quite arbitrarily prevented the appellant from producing all his evidence with an observation that he did not think it necessary to record further evidence. He had also decided the question of limitation with the observation that the appellant was not ill for a major part of the period immediately following the pronouncement of the judgment of the learned trial court and that he should not have waited upto the last date for taking steps towards the presentation of the appeal. It has not been, however, held that the contention raised by the appellant that he was ill and unable to move about was false.
(2.) NOW, when the appellant wanted an indulgence under Sec. 5 of the Indian Limitation Act, the learned Revenue Appellate Authority was bound to decide whether the reasons given by him were correct or not; then he was to decide whether those reasons were "sufficient" or not; and it was only thereafter that a decision should have been taken whether an indulgence under Sec. 5 of the Indian Limitation Act could be shown to the appellant or not. So obviously, the learned Revenue Appellate Authority has decided none of these points specifically. It is a well settled law that unless there were malafides or any special reasons for holding otherwise, the appellant could not be punished for his not taking any step towards the presentation of the appeal until the last date of the expiry of the period available to him. The obvious reason is that Sec. 5 of the Indian Limitation Act can come into application only when the normal rules of limitation are somehow or other omitted to be followed. It is then and then alone that the question of examining whether there was a "sufficient cause" for the delay in the presentation of an appeal can arise and can be required to be decided. For this purpose, the appellant is entitled to seek an opportunity of proving his case and producing all evidence in that behalf in support of his contention. He cannot be shut out from doing so, as has been done by the learned lower appellate court in this case. One point more has been tried to be urged on behalf of the respondent that the very statement of the appellant did not tally with his affidavit. It means to say that the appellant did not refer in the affidavit preferred by him along with the application under Sec. 5 that he did attend the meetings of the Panchayat as an invalid with the help of other people and that as he did not do so his statement that he was invalid and could not move about and that it was only realising his sense duty as Sarpanch that he went a small distance in conveyance to preside over the meeting of the Panchayat could not be believed. Suffice it to say that an affidavit is not an evidence unless an order has been specially passed by the Court to prove any fact by means of an affidavit alone in terms of R. I of O. XIX C. P. C. The evidence produced by the appellant could not therefore be judged in the light of the affidavit, which, it may also be observed, did not need to be giving all the details. Either the appellant should have decided the worth of the statement of the appellant on its own merit or should have allowed, if he did not want to believe that single testimony, the appellant to produce other evidence to support his case and then consider the whole evidence in accordance with the well established principles of law of evidence. The learned counsel for the respondent too concedes this position and does not contest it. He also submits that the case should be remanded for letting the appellant produce all his evidence and for decision afresh on merits. Accordingly we accept this appeal, set aside the order of the learned lower appellate court and remand the case back to him for decision afresh in accordance with law in the light of letting the appellant produce all his evidence and then the observations made above. .;