J.P.JAIN, J. - (1.) THIS second appeal by the defendant is against the appellate judgment and decree dated 30 -7 -69 dismissing his first appeal No. 104/69 as time barred.
(2.) RESPONDENT 's suit for arrears of rent and for the ejectment of the defendant from the suit premises was decreed with costs on 30 -11 -68 by the Additional Munsiff Magistrate Ajmer City (East). Against this decree defendant Suresh Kumar preferred the appeal No, 104 of 69 on 13 -2 -69. He applied for certified copies of the judgment and decree on 20 -12 -68 4 -1 -69 20 -12 -68 4 -1 -69 was fixed for the delivery of the copies. On that date, according to the contention on behalf of the appellant Mr. Rikhab Chand Jain his advocate was present. The copies were not ready. No next date was fixed for delivery of the copies. Copies were ready on 28 -1 -69. As the defendant or his counsel had no notice, he obtained the copies on 12 -2 -69, and presented the appeal on 13 -2 -69 Along with the memo of appeal the appellant submitted an application under Section 5 of the Limitation Act, accompanied by an affidavit. The learned Civil Judge, Ajmer, who dealt with this appeal held the appeal as time barred and found that there was no good cause for condoning the delay. Accordingly he dismissed the appeal vide his order dated 30 -7 -69. It is this decree that has been challenged in second appeal. Mr. Rikhab Chand Jain appearing on behalf of the appellant invited my attention to Rule 234 of the General Rules (Civil), 1952. He submitted that on 4 -1 -69 he was present in the copying department. Copies were not ready and he was not intimated of any further date for delivery of the copies and when he came to know on 12 -2 69 that copies were ready, he obtained the same on that very day. Another submission on behalf of the appellant that has been advanced is that assuming that he was not present on 4 -1 -69 it was obligatory on the part of the copying department to have notified the next date for delivery on the notice board of the court and since it was not done, it can not be said that he was not entitled to exclude the time from 28 -1 -69. Rule 234 reads as follows: 234. A definite date not ordinarily exceeding seven days ahead shall be fixed for the delivery of the copy and intimated to the applicant. The copy, as far as possible, shall be delivered on the date so fixed. If for any reason, the copy is not ready for delivery on the date so fixed, the applicant shall be directed to attend on another date, when the copy may be expected to be ready for delivery. If the copy is not ready and the applicant does not appear on the date fixed, notice of the next date fixed for the delivery of copy shall be sent to him by post, if he has deposited the necessary postal charges. If necessary postal charges have not been deposited it shall be affixed on the notice board of the court.
(3.) AFTER having read the application 13 -2 -69 and the affidavit of Mr. Rikhab Chand Jain I am unable to hold that he was present on 4 -1 -69. I find no positive assertion in His affidavit that he was present on that date, The learned Counsel urged that it can be inferred from the facts stated by him that he was present on 4 -1 -69 in the copying department to take the delivery of the copies. I am unable to find any substance in this submission. I accordingly hold that the learned Judge in appeal was right in holding that nobody on behalf of the defendant was present on 4 -1 -69.;