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TMI Blog1996 (5) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the impugned order. On the request of the petitioner he was allowed tq convert the appeal into revision. 3. The brief facts relevant for the disposal of this petition may be noticed. Sundar Lal non-petitioner-plaintiff filed a suit against the appellant Gopi Lal and respondent No. 2 Phool Puri for eviction and arrears of rent before the learned Munsif, Rajsamand. The suit was decreed by the learned Munsif by his judgment dated 27-3-93. Feeling aggrieved by the judgment and decree the defendant namely Phool Puri and Gopi Lal preferred an appeal before the learned District Judge, Rajasamand. Since the presentation of appeal was beyond the period of limitation, in compliance of the provisions of Order 4, Rule 3-A, C.P.C., the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant it could be assumed that he was taken ill on 23 and 24 April, 1993. The appellant had enough time to obtain copies of the judgment and decree or at least he could have instruct his advocate for obtaining the copies notwithstanding his illness. He, therefore, found the appellant Gopi Lal negligent. He also observed that the appellant Gopi Lal only explained his so-called inability to file the appeal but not a word was added why the appeal was delayed by the another appellant namely Phool Puri. 4. I have heard the learned Counsel for the petitioner and the non-petitioner. Learned Counsel has referred to the documentary evidence produced by him in support of the application filed by him under Section 5 of the Limitation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led without any further delay. The learned District Judge did not deal with documentary evidence filed by the appellant and without discussing the same passed an order dismissing his application. He also submitted that Phool Puri was a pro forma defendant and if she did not file any application under Section 5 of the Limitation Act, the prosecution of the appeal filed by Gopi Lal will not be adversely affected. The learned District Judge, therefore, committed jurisdictional error in not considering the facts of the case and deciding the case according to law. 5. Learned Counsel for the non-petitioner has contended that in revisional jurisdiction this Court cannot consider the merits of the case. Finding of fact recorded by the Firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the District and Sessions Judge the copy was ready on 5-5-93. He, therefore, submitted that the learned District Judge has not committed any error in the exercise of his jurisdiction in rejecting the application filed by the petitioner for con-doning delay. 7. I have considered the rival contentions. On merits the short facts which have been proved by the petitioner are that he was admitted in the Bombay Hospital on 23-3-93 and was discharged on 26-4-93. He came to Nathdwara and instructed his advocate to file an application for obtaining the certified copies of the judgment and decree and the same was done on 27-4-93. A perusal of the endorsement made by the copying department on the back of the certified copy shows that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned is right or wrong or in accordance with law or not unless it has exercised its jurisdiction illegally or with material irregularity. 9. A Full Bench of the Kerala High Court in Raj Krishma Films case laid down that where the lower appellate Court found that petitioner did not establish sufficient ground to condone delay under Section 5 of the Limitation Act the same cannot be set aside in revision. 10. In Bansi alias Bansidhar Agarwal's case (1994 (1) WLC 623) (supra) this Court while dealing with the powers under Section 115, C.P.C. in a matter arising out of the rejection of an application under Section 5 of the Limitation Act held that where appellate Court declined to condone delay and recorded reasons for not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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