// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6389/2004 Smt. Aruna Singh D/o late Shri Roshan Singh Versus The District Judge, Jhunjhunu and Others Date of Order ::: 17.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Devendra Raghava, Counsel for petitioner Shri Himmat Singh and Shri Rajesh Kapoor, Counsel for respondents #### By the Court:- Heard learned counsel for the parties. The plaintiff-petitioner filed a suit for declaration and permanent injunction in respect of disputed property in the trial court. An application for temporary injunction was also filed along- with the suit. The trial court dismissed the application of the plaintiff for temporary injunction vide order dated 23rd February, 2004. Being aggrieved with the same, a miscellaneous appeal was preferred by the plaintiff before the appellate court on 28th April, 2004. There was some delay in filing the appeal, therefore, an application under Section 5 of the Limitation Act was also filed to condone the delay in filing the appeal. The appellate Court was of the view that the plaintiff has failed to explain the delay in filing the appeal for the period from 15th April, 2004 to 27th April, 2004 and dismissed the application under Section 5 of the Limitation Act and consequently also dismissed the appeal being barred by // 2 // limitation. The aforesaid orders of both the courts below are under challenge in this writ petition preferred by the plaintiff. The learned counsel for the petitioner contended that the first appellate court committed an illegality in dismissing the plaintiff's appeal only on the ground of delay and in not condoning the delay of only 13 days i.e. from 15th April, 2004 to 27th April, 2004. He contended that the plaintiff remained sick during the period from 20th February, 2004 to 15th April, 2004 and a medical- certificate was placed on the record along-with the application under Section 5 of the Limitation Act. The first appellate court disbelieved the medical-certificate only on the ground that it has been issued by the private doctor. He further contended that the approach of the first appellate court in rejecting the appeal being barred by limitation is absolutely illegal and the said order is liable to be set-aside and prays for remand of the matter back to the first appellate court with a direction to decide the appeal on merits. The learned counsel for the respondents defended the impugned orders passed by the trial court as well as the first appellate court and prays for dismissal of the writ petition. I have considered the submissions of learned counsel for both the parties in the light of impugned orders passed by both the courts below. The plaintiff as well as the defendants both are brother and sisters and there is dispute in between them in respect of disputed property about their respective shares, therefore, the present suit for declaration and permanent injunction was // 3 // preferred by Aruna Singh D/o Roshan Singh. Although, the trial court rejected the application for temporary injunction but the said order was challenged in the miscellaneous appeal before the first appellate court. I have examined the reasons assigned by the first appellate court in rejecting the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. The plaintiff placed on the record a medical-certificate issued by Prakash Hospital, Radha Swami Satsangh, Rohatak Road, Bhiwani, wherein it was mentioned that Aruna Singh remained under their treatment from 20th February, 2004 to 15ath April, 2004 and she was advised for complete rest. The first appellate court rejected the said certificate on the ground that it is not numbered and it has been issued by private doctor. It has further been observed that when the certified copy of the order was made available on 15th April, 2004 then why the appeal was preferred on 28th April, 2004. From the contents of the application it appears that the plaintiff remained under medical treatment upto 15th April, 2004 and if the limitation is counted from that date then the appeal was preferred within a period of limitation. However, the first appellate court rejected the application under Section 5 of the Limitation Act. Normally, the matters are not disposed of being only on the ground of their being barred by limitation unless the same are meritless. In the present case it appears that the dispute was in between brother and sisters and, in these circumstances, the first appellate court was not justified in not condoning the delay of 13 days and in not accepting the medical-certificate placed on the // 4 // record. The reasons assigned by the first appellate court in rejecting the application under Section 5 of the Limitation Act as well as the appeal being barred by limitation, is not correct and its order is liable to be set-aside. Consequently, the writ petition is allowed. The impugned order dated 28th April, 2004 passed by the Additional District Judge, Jhunjhunu, in Civil Miscellaneous Appeal No.88/2004 (Old No.33/2004). The application under Section 5 of the Limitation Act filed by the petitioner is allowed and the delay in filing the miscellaneous appeal is condoned. The matter is remanded back to the Court of Additional District Judge, Jhunjhunu, with a direction to hear and decide the appeal of the petitioner on merits. This Court, vide order dated 28th September, 2004, had passed interim order directing both the parties to maintain the status- quo, therefore, I think it fit and proper that the said order of status-quo shall remain in force during the pendency of the first appeal before the appellate court. The appellate court is directed to decide the appeal as soon as possible preferably within a period of three months from the date of receipt of this order. Both the parties are directed to appear before the Additional District Judge, Jhunjhunu, on 12th May, 2008. Costs is made easy. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.5489/2004 In S.B. Civil Writ Petition No.6389/2004 Smt. Aruna Singh D/o late Shri Roshan Singh Versus The District Judge, Jhunjhunu and Others Date of Order ::: 17.04.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Devendra Raghava, Counsel for petitioner Shri Himmat Singh and Shri Rajesh Kapoor, Counsel for respondents #### By the Court:- In view of the order passed in the writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman//