Pratap Krishna Lohra, J. - (1.) THIS first appeal under Section 96 CPC is laid on behalf of the appellant -defendant No. 1 to challenge impugned judgment and decree dated 30th May, 2009 passed by the learned Additional District Judge No. 1, Bhilwara, whereby the learned Court below passed preliminary decree for partition and restrained the defendants by permanent injunction not to alienate or transfer the house, nohra and agricultural land to any other person till partition of the property by metes and bounds in favour of plaintiff and against defendant No. 1 while demarcating respective shares of all the parties.
(2.) THE appeal is filed after delay of 600 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 filed the present first appeal which is prima -facie arguable and the impugned judgment and decree is liable to be set aside. 2. That the appellant had engaged an advocate to take care of her interest in the property and after examination of witnesses, the appellant was never informed by the Advocate regarding final hearing of the suit, nor the appellant came to know through the concerned Advocate regarding judgment and decree having been passed against her on 30.5.2009. It is submitted that the appellant came to know of the preliminary decree very recently when after filing of application for preparation of final decree on 9.3.2010 notices of the same were issued. That the appellant could not have gained anything from delayed filing of appeal and even when the appellant contacted her advocate in the learned trial Court upon receiving summons for preparation for final decree all that her advocate conveyed was that the appellant can challenge final decree in Civil First appeal. The appellant, therefore, was not aware about the judgment and decree under challenge nor aware about her right to file an appeal against the preliminary decree and the appellant therefore, was prevented bys sufficient cause in filing this appeal within the period of limitation. The delay caused in filing the appeal was therefore, bona fide and unintentional and the same deserves to be condoned.. It is, therefore, most respectfully prayed that the foregoing application may kindly be allowed and the delay in filing the substitution application may kindly be condoned." 3. I have heard learned counsel for the appellant and perused the application.
(3.) WELL it is true that a litigant cannot be made to suffer on account of omissions of a lawyer but some proof is required to be given that how and in what manner advocate was negligent in discharging its professional obligation.;