Pratap Krishna Lohra, J. - (1.) APPELLANT -defendant has filed this second appeal under Section 100 CPC to challenge the impugned judgment and decree dated 11th of January, 2013 passed by learned Additional District Judge No. 1, Udaipur (Lower Appellate Court), whereby learned Lower Appellate Court has affirmed the judgment and decree passed by Civil Judge (Senior Division) Mavli dated 19th october, 2006.
(2.) THIS appeal is filed after delay of 361 days, therefore, appellant has also moved an application under Section 5 of the Limitation Act for condonation of delay. Averments contained in the application reads as under: - 1. That the appellant has preferred the instant second appeal against decree and judgment award dated 11.01.2013. 2. That the decree and judgment was passed on 11.01.2013 and for the certified copy application was made on 16.1.2013 and the copy to be ready on 17.1.2013 and same was ready on 17.1.2013. The counsel represented the appellant assured him that he will inform him of the progress of the appeal as the presence of the appellant was not required after filing of the appeal, but the counsel did not inform him that judgment has been passed the appeal filed by him has been dismissed. That thereafter as the appellant was not inform about the passing of the decree and judgment. As he was assured that the will be informed about the progress of the case, but since no information was given by the local counsel to him, then he contacted his counsel in the interregnum period so many times to know about the progress of the appeal, till that time the decree and judgment was not passed, but as the appellant being a resident of village Fatehnagar, which is far from Udaipur, could not contact his counsel regularly who represented the present appellant before the appellate court as the present appellant was having serious ailment and was under treatment and then he contacted to him on 07.04.2014, then only he came to know about the passing of the decree and judgment.
(3.) THAT thereafter as the appellant as being an old man was having serious ailment and also was not having any means of earning, but despite this the appellant contacted the present counsel on 9.04.2014, the present counsel advised him to come to Jodhpur, then the appellant along with the relevant papers came to Jodhpur 12.04.2014. The present counsel advised him to challenge the decree and judgment impugned. The appeal was drafted on the same i.e. 12.04.2014 as on 13.04.2014 and 14.4.2014 there was holidays. Same was filed on 15.04.2014.;