IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 403 of 2004. Date of Decision: 08.12.2010. Smt.Nirmla Devi ..Petitioner. Versus. Smt.Reshmo Devi and others .. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Mr.N.K. Sharma, Advocate. For the Respondent(s): Mr. K.D. Sood, counsel for R-1. Deepak Gupta, J. (Oral). 1. This petition is directed against the judgment dated 30.6.2004 passed by the learned Additional Chief Judicial Magistrate, Ghumarwin in case No.4/10 of 2004/2003 whereby the appeal filed by the petitioner has been dismissed as being time barred. 2. The undisputed facts are that the Gram Panchayat passed an order on 24.8.2002 and a copy of the said order was obtained on 15th September, 2003 and the appeal filed on 17th September, 2003. The learned Court below held that the appeal is barred by limitation. An application under Section 5 of the - 2 - Limitation Act was also filed but the learned trial Court held that such an application is not maintainable. Further, the learned trial Court held that there was no need to file the copy of the order of the Gram Panchayat. 3. In my view the order passed by the learned trial Court is illegal on all counts. How can an appellate Court decide whether the order passed by the Court/Authority subordinate to it is right or wrong without having the benefit of the order itself? Even the appellant cannot prepare the grounds of appeal unless copy of the order is available with him. Even the aggrieved party cannot file an appeal unless it has benefit of the copy of the order. Filing of a copy of the order is therefore essential and in my view the learned court below has gravely erred in holding that the order of the Gram Panchayat was not required to be filed with the appeal. Therefore, the time spent in obtaining the copy of the order of the Gram Panchayat must be excluded while calculating the time spent in filing the appeal. - 3 - 4. As far as maintainability of the petition under Section 5 is concerned, the matter is squarely covered by the judgment of this Court in Gian Chand vs. Nand Lal and another, 2005 (2) Shim. L.C. 155, wherein this Court held as follows: “7.Clearly the H.P. Panchayati Raj Act, 1994 is both a special as well as a local law and equally clearly, Section 67 of this Act provides a period of limitation for filing appeals which is different from the period prescribed in the Schedule to the Limitation Act. That being the case, apart from Section 3 of the Limitation Act, Sections 4 to 24 are also applicable and, therefore, if with respect to a time-barred appeal preferred under Section 67 of 1994 Act the appellant seeks condonation of delay, Section 5 of the Limitation Act immediately is attracted and comes to his rescue and aid and he, as a matter of right, is entitled to, through the medium of such an application under Section 5 of the Limitation Act pray for condonation of delay in filing a time-barred appeal. That right vests in such an appellant. Whether on facts and/or merits delay is to be condoned, or it is not to be condoned, is a different matter altogether. The fact remains that the right of seeking condonation of delay vests in such an appellant and that right inheres in him by virtue of Section 29 of the Limitation Act. This right cannot be taken away by juxtaposing something from Section 60 of the Act which is not at all related or applicable to Section 67 of the Act.” 5. Therefore, on both these counts, the petition has to be and is hereby allowed. The matter is remanded - 4 - to the learned Court below who shall now decide the question whether the appeal was filed within limitation after deducting the time spent for obtaining the copy of the order of the Gram Panchayat. In case he finds that the appeal is not within limitation then he shall decide the application under Section 5 of the Limitation Act. 6. The appeal is allowed in the aforesaid terms and the matter is remanded to the learned trial Court for decision afresh. Both the parties are directed to appear before the learned Additional Chief Judicial Magistrate, Ghumarwin on 11th January, 2011. The Registry is directed to ensure that the records of the Court below are sent back at the earliest so as to reach on or before the aforesaid date. December 8, 2010. (Deepak Gupta), J. PV