2010 Supreme(Raj) 1450
RAJASTHAN HIGH COURT
Gopal Krishan Vyas, J.
LR’s of Late Shri Banshilal - Appellant
Versus
Gori Bai and another - Respondent
S.B. Civil Misc. Appeal No. 703 of 1999.
Decided On : 12-04-2010
Advocates:
For the Appellants:R.K. Charan, Advocate.
For the Respondents:S.L. Jain, Advocate.
Headnote:Civil Procedure Code, 1908, Order 41, Rule 19 – Limitation Act, 1963 – S. 5 – The Appellant filed the Misc. Application against the order of the Trial Court vide which it dismissed the Appeal for non – appearance of the Counsel of the Appellant – The Appellant while filing the restoration application along with Application for Condonation of delay u/s – S. 5 failed to file affidavit with the same – The same was again rejected by the Trial Court – Held that the Misc. Application is not maintainable and that the – S. 5 of the is revisable – Hence Appeal stands dismissed.
JUDGMENT
1. - In this misc. appeal, the order dated 27.07.1999 passed by the Additional District Judge No. 1, Chittorgarh in civil Misc. Case No. 65/96 is under challenge, whereby, the learned trial court while dismissing the application filed under Section 5 of the Limitation Act rejected the application for restoration of appeal also.
2. Admittedly, the appeal was dismissed for non-appearance of the counsel for appellant on 15th December, 1995. Thereafter, an application for restoration of appeal along-with an application under Section 5 of the Limitation Act for Con-donation of delay was filed, but no affidavit in support of application was filed. Therefore, learned trial court while rejecting the application filed under Section 5 of the Limitation Act, rejected the application for restoration of appeal also.
3. Learned counsel appearing on behalf of respondents submits that in view of the judgment rendered by this Court reported in RLW 1998 (1) Raj. p.165, Gopi Lal v. Sundar Lal & Ors. , admittedly against the order of rejection of an application filed under Section 5 of the Limitation Act, only revision lies. Therefore, this misc. appeal is not maintainable.
4. After perusing the judgment cited by learned counsel for the respondents and taking into consideration the facts of this case, this misc. appeal is not maintainable because this appeal has been filed against the order of rejection of application filed under Section 5 of the Limitation Act against which, revision is maintainable.
5. In this view of the matter, this misc. appeal is dismissed as not maintainable. However, in view of the judgment of Gopi Lal (supra) the appellants are free to invoke revisional jurisdiction.Appeal dismissed.
*******
Click Here to Read the rest of this document
Back
