JUDGMENT

Mr. Sanjay Vashisth, J. (Oral)

Present revision petition has been filed by the plaintiffs against the impugned order dated 01.11.2017 whereby First Appellate Court/learned District Judge, Kurukshetra dismissed the application, seeking condonation of delay in filing the civil appeal and the appeal filed by the plaintiffs (petitioners herein), being the same time barred.

2. Plaintiffs (total twelve) filed a suit for permanent injunction against defendant-Municipal Council, Thanesar seeking a decree for restraining defendants from interfering in the peaceful cultivating possession and ownership of the plaintiffs over the land measuring 3 Kanal 0 Marla, comprising in Khewat No.2295/2153, Khatoni No.2642, Khasra No.200/15, situated at Mauja Darra Kalan, Tehsil Thanesar, District Kurukshetra and also from dispossessing the plaintiffs from the suit land forcibly and illegally or in any other manner.

3. Suit was contested by the defendant-Municipal Council resulting into the dismissal of the same vide judgement and decree dated 28.11.2016. Thereafter, all the appellants approached the Appellate Court by way of an appeal under section 96 of the CIVIL PROCEDURE CODE (CPC), challenging the judgement and decree dated 28.11.2016 passed by the trial Court. Said appeal was suffering with the delay of total 38 days in its filing.

In the application filed under section 5 of the LIMITATION ACT , 1963, for seeking condonation of delay of 38 days in filing the appeal, plaintiffs (petitioners herein) explained that appellant No.1 (Kaushal Nath) who was pursuing the case on behalf of all the plaintiffs in the trial Court was not able to contact his counsel for knowing the status of the case due to his busy schedule in the business affairs. In fact, it was also averred in the application that he had forgotten the date of the case fixed before the trial Court. All the plaintiffs were depending upon the wisdom of appellant No.1- Kaushal Nath, for the purpose of pursuing the proceedings before the Courts.

4. It is further averred that thereafter, said Kaushal Nath contacted his counsel on 16.01.2017 and got to know the factum of dismissal of the suit by the trial Court vide order dated 28.11.2016. Immediately thereafter, an application for getting certified copy of the judgement and decree dated 28.11.2016 was moved and simultaneously, all the other plaintiffs were also informed about dismissal of the suit.

5. Relevant extracted part of the application seeking condonation of delay in paragraphs No.3, 4, 5 and 6, is reproduced here below:-

"3. That the delay of 38 days in filing the present appeal is only due to the reason that the plaintiff appellant No.1 Kaushal Nath is pursuing the case behalf of all the appellants / plaintiffs in the trial: court and Kaushal Nath had not contacted his counsel for knowing the status of the case due to his busyness in his business as Kaushal Nath plaintiff/appellant No.1 had forgotten the date of the case fixed in the Trial court. The other applicants / appellants are only depending upon the appellant No.1 Kaushal Nath who is pursuing the case in the Trial Court on behalf of all the plaintiffs / appellants.

4. That when Kaushal Nath applicant/ appellant No.1 had contacted his counsel on 16.01.2017 then only he came to know that the suit of the plaintiffs / appellants stands dismissed by the Trial Court on 28.11.2016 and thereafter the applicant/ appellant No.1 Kaushal Nath had immediately applied for certified copy of the judgement and decree dated 28.11.2016 and thereafter communicated the dismissal of the suit vide judgement and decree dated 28.11.2016 to the other appellants / plaintiffs.

5. That the delay in filing of the present appeal is nly due to the reason mentioned above and hence the delay occurred is only bonafide one. The last date for filing of the present appeal was 02.01.2017 on the opening day of the court after winter vacation and hence there is a delay of 38 days in filing the present appeal