- (1.) THIS Second Appeal arises out of the judgment and decree dated 22.02.2013 passed in Title Appeal No. 74 of 2011, whereby the learned Principal District Judge, Dhanbad has dismissed the appeal filed by the appellant on the ground of limitation observing that explanation given by the appellant for condoning the delay is not convincing.
(2.) THE impugned judgment has been assailed on the ground that though there was delay in filing the appeal, sufficient explanation of cause of delay was furnished by the appellant before the learned lower appellate court. The judgment in T.S. No. - 166 of 2005 was delivered on 03.02.2010, copy of the judgment was received by the appellant on 08.02.2010. Under wrong legal advice, the appellant had challenged the said judgment of the learned trial court in writ jurisdiction of this Court in W.P.(S) No. 1877 of 2010. The said writ petition was dismissed vide order dated 03.11.2010 observing that the appellant had remedy by way of regular appeal. The said order was communicated and that took some time. The appellant in the meanwhile fell ill and when he recovered from his illness, he filed appeal on 12.10.2010.
(3.) MR . Mahesh Tiwari, learned counsel appearing on behalf of the appellant, submitted that the delay was sufficiently explained before the learned lower appellate court but the same was not considered and the impugned order was passed. Though the respondents opposed the application, no rejoinder was filed by them disputing the said facts and the reasons for delay in filing the appeal explained by the appellant. Learned counsel submitted that when there was no specific denial or any statement controverting the said facts, the court should have accepted the explanation or the appellant should have been given opportunity to establish the fact, if the court had any doubt about the truth of the facts explained by the appellant. Since, there was no dispute on facts; there was no occasion for the appellant to burden the learned court below with any evidence.;