IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 615 of 2010 (M/S) Aabbal Singh ………..Petitioner Versus State of Uttarakhand and others …….Respondents Shri D.C.S Rawat, learned counsel for the petitioner. Shri Sudhir Kumar, learned Brief Holder for the State. Dated: 29 April, 2010 Hon’ble V.K. Bist, J. Heard learned counsel for the parties. By means of this writ petition, the petitioner has challenged the order dated 20.04.2010 passed by the learned District Judge, Pauri Garhwal in Misc. Case No.50/2009 Aabbal Singh Vs. State of Uttarakhand and others by which his application under section 5 of Limitation Act was rejected and consequently the appeal was also dismissed. Brief facts of the case are that in the year 2005 proceeding under Section 4/5 of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 were initiated against the petitioner on the allegation that petitioner had encroached upon the government land over Khasra no.1517 at village Gwertalla, District Pauri Garhwal and case no.5/2005 was registered. Petitioner filed his written statement and also adduced his evidence. Due to death of petitioner’s counsel the 2 petitioner could not appear before the Court and ex- parte proceedings were initiated against the petitioner and finally ex-parte judgment and order was passed on 21.10.2009. Petitioner came to know about the said judgment on 18.11.2009, when he received form B and F. He filed appeal alongwith delay condonation application on 02.12.2009. As per office report there was 26 days delay in filing appeal. The ground for the delay in filing the appeal was that the advocate of the petitioner late Sanjay Singh Negi was doing pairavi of his case but unfortunately he died due to heart attack. Petitioner could not know about the death of his counsel and when he received form B and F, he came to know about the judgment passed by the Prescribed Authority. Immediately, thereafter, he obtained certified copy of the order on 18.11.2009. Thereafter, he filed the appeal before the District Judge. Learned District Judge, Pauri Garhwal rejected delay condonation application of the petitioner on the ground that petitioner remained absent even in the Court of Prescribed Authority from 24.09.2009. It was observed by the learned District Judge, Pauri Garhwal that in the event of untimely death of the petitioner’s advocate, the petitioner should have gone personally in the Court and should have engaged another advocate for doing pairavi in his case. Learned District Judge further observed in his order that petitioner himself was negligent in his case and he did not appear in the Court. Learned Brief Holder for the State submitted that Section 9 (2) read with Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 provides start of limitation from date of publication of the order. He further submitted that since the copy of form B & F was received by the petitioner on 18.11.2009, the appeal filed by the petitioner was within time. Prima facie, this Court is satisfied with the submissions made by learned Brief Holder for the State but since no such ground has been taken in the writ petition, this Court is not considering this ground. After hearing the argument of learned counsel for the parties, this Court is of the view that learned District Judge, Pauri Garhwal erred by considering the absence of the petitioner in a case which stood decided before filing of the appeal. Absence of a party in a case which is not before the court cannot be and should not be considered for deciding delay condonation application. The District Judge should have considered the reasons of delay in filing the appeal which was before him. The reason given by the petitioner was that due to untimely death of his advocate he could not know about the judgment passed on 21.10.2009. This ground, in my opinion, is sufficient to condone the delay in filing the appeal. Consequently, the writ petition is allowed. Order dated 20.04.2010 passed by the learned District Judge, Pauri Garhwal is set aside. Application no.5(G) filed by the petitioner for condoning the delay in filing the appeal before the District Judge, Pauri Garhwal is allowed. Appeal filed by the petitioner 4 against the judgment dated 21.10.2009 is treated to be filed within time. Learned District Judge, Pauri Garhwal is directed to register the appeal and decide the same on merit. No order as to costs. (V.K. Bist, J.) Arpan 29.04.2010