The court may condone delay in filing an appeal if a sufficient cause within the meaning of Section 5 of the Limitation Act is made out. The parties and the learned counsel owe a duty to bring relevant facts to the notice of the Judge that would disable him from hearing a case placed before him.

ORDER :

R.C. Lahoti and Brijesh Kumar, JJ.

Heard the learned counsel for the petitioner.

The petitioner herein is the respondent in the regular first appeal before the High Court. In this order we will refer to the parties as they are arrayed in the High Court.

2. By the impugned order, M.V. Sundar Raj v. Trishala, Regular First Appeal No. 329 of 2001, Order dated 28-5-2002 the High Court has condoned 861 days' delay in filing the regular first appeal and directed the appeal to be listed for hearing on the question of admission. Feeling aggrieved by such order, the respondent in the High Court has filed this petition seeking special leave to appeal.

3. The first appeal in the High Court is by the defendants against an ex-parte decree of the trial court. It appears that the defendants were proceeded ex-parte from the very beginning. The suit property is an immovable property. The ex-parte decree directs declaration of title, delivery of possession and ascertainment of mesne profits. According to the appellants the summons in the suit were not served on them and they were not aware of the suit or the ex-parte decree passed therein. On becoming aware of the ex-parte decree they obtained certified copies of the judgment and decree and filed the appeal. It is further stated that there are several suits relating to this property and in each of the suits the appellant-defendants are contesting and there is no reason why the defendants, if served, would not have appeared and contested the suit.

4. Before the High Court the respondent (i.e. the petitioner in this Court) was noticed on the application seeking condonation of delay in filing the appeal. She appeared and filed reply. The application seeking condonation of delay in filing the appeal sets out the case in support of prayer for condonation of delay in filing the appeal and is supported by an affidavit. When the application was taken up for hearing the respondent and her counsel were absent. The matter was passed over and heard on the second call whence also none was present for the respondent. The High Court heard the learned counsel for the appellants. It felt satisfied with the truthfulness of the averments made in the application, supported by affidavit. In the reply filed on behalf of the respondent it is stated vide para 5 "the appellants are put to strict proof of the same" i.e. of all the averments made in support of the application. However, the respondent did not make a prayer for enquiry being held nor did she make a prayer for cross-examination on the affidavit filed by the appellant.

5. No fault can be found with the opinion formed by the High Court that a sufficient cause for condoning the delay in filing the appeal, within the meaning of Section 5 of the Limitation Act, was made out.

6. It was next urged by the learned counsel for the petitioner that one of the appellants in the High Court is a Municipal Corporator and the learned Judge of the High Court who has passed the impugned order, was, whilst practising at the Bar, a Standing Counsel for the Municipal Corporation, and therefore, should have recused himself from hearing the appeal. It was further submitted by the learned counsel for the petitioner that in another RFA between some different parties the learned Judge had recused himself on his own from hearing that RFA. For this reason this Court should set aside the impugned order of the High Court and send back the matter for being heard 1 by another Judge of the High Court, urged the learned counsel.

7. For the reasons stated hereinafter we are not inclined to entertain this plea of the learned counsel for the petitioner:

7.1. Firstly, the attention of the learned Judge of the High Court should have been invited to the relevant facts and there is no reason to hold why the learned Judge would not have recused himself, if at all a ground for doing so would have been made out and if only he would have been alive or made alive to such facts. A Judge may not necessarily