1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER SB Cr Revision Petition No. 523/2010 Dharmender Dhabi Vs Smt Hemlata 23.7.2010 HON'BLE MR JUSTICE MN BHANDARI Mr Mohammed Anees – for petitioner Mr NK Goyal for Mr Anil Upman – for respondent BY THE COURT: Aggrieved by the order dated 22.3.2010 this revision petition has been preferred by the petitioner. Vide the impugned order, appeal filed by the petitioner was found to be beyond period of limitation and accordingly the application under section 5 of the Limitation Act was dismissed so also the appeal. Learned counsel for the petitioner submits that trial court passed order on 17.11.2009 thus appeal was to be preferred within a period of thirty days excluding the period in obtaining copy of the order. The appeal was filed on 20.1.2010 i. e. with a delay of 26 days. The application under section 5 of the Limitation Act for condonation of delay was filed showing the reasons for 2 delay as the petitioner's mother was unwell. The application was considered by the appellate court, however, taking note of the fact that affidavit in support of the application had not been filed coupled with documents relating to treatment of mother showing her to be only out-door patient. The cause shown was not considered to be justified. In view of aforesaid, even on merits, the delay was not found to be justified, thus application under section 5 of the Limitation Act was dismissed so as the appeal. Learned counsel for the petitioner submits that delay caused in filing the appeal was justified hence the order passed by the appellate court may be set aside. Learned counsel for the respondent, on the other hand, submits that the appeal has rightly been dismissed by the appellate court. No justified reason for delay could given by the petitioner. In view of aforesaid, no case is made out for interference by this court. I have considered rival submissions of learned counsel for the parties and perused the material available on record. It is a case where initial order was passed by the trial 3 court on 17.11.2009. Aggrieved by the said order, appeal was preferred after expiry of the period of limitation. The application under section 5 of the Limitation Act was filed but affidavit in support thereof was not filed. The reason of delay was shown to be ailment of petitioner's mother. Learned appellate court even after noticing that affidavit in support of the application has not been filed, considered the application on merit. I am of the opinion that delay in filing appeal is only of 26 days thus looking to the period of delay and reason thereof seems to be justified hence it is a case where application deserves to be allowed. Merely for the reason that petitioner's mother was not an in-door patient, justification for delay cannot be ignored. This is more so when in absence of an affidavit also, court below considered the application on its merit. In view of the aforesaid, dismissal of the application under section 5 of the Limitation Act so also the appeal cannot be said to be justified. It may be that there was a technical defect of non- filing of affidavit in support of the application under section 5 of the Limitation Act the same was curable. As an outcome of the discussion made above, the revision petition is allowed. Order dated 22.3.2010 passed by the Additional Sessions Judge (FT) No.1, Jaipur City is set aside. The application under section 5 of the Limitation Act filed before the 4 aforesaid court is allowed and delay in filing the appeal is condoned. As a result of which the appeal stands restored. The appellate court is directed to hear the appeal on merits and decide the same. (MN Bhandari), J. bnsharma