The Additional District Judge has dismissed the appeal of the petitioner; on 19th December, 1978, as barred by time.
2. The facts are that the impugned decree of the Civil Judge was passed on 17th June, 1975. An application for a copy was moved the same day It was prepared on 28th June, 1975, but was received by the petitioner; or, 3rd July. 1975. The appeal was, however, filed on 1st September, 1975.
3. Computing the period spent in obtaining the copy (from the date of application to the date of preparation) the appeal should have been filed at most till 29th July, 1975. As such it was badly barred by time. Even an application for condonation of delay was not made before the learned Additional District Judge, although the Clerk of Court had made a report the appeal was barred by time.
4. The learned counsel for the petitioners argues that the delay in obtaining the certified copy of the impugned decree and judgment was caused by the fact that no date for preparation of the copy was given to the petitioners and for this reason the time from the date of application for copy to the date when the petitioners collected the copy should have been computed. This argument would have force if the petitioners had made out a prima facie case by an affidavit before the learned Additional District Judge. In the first instance they should have filed an application under section 5 of the Limitation Act, but even if it is presumed that an oral application would have been sufficient, it was the duty of the petitioners to file an affidavit in order to make out a prima facie case. In that contingency the burden would either have shifted on the other party or it would have been necessary for the Additional District Judge to make an inquiry from the Copying Department.
But unfortunately even that affidavit was not filed.
5. I may note that the learned Additional District Judge has said that even if the petitioners were entitled to computation of the period up to the date of receipt of the copy, they should have filed the appeal before the beginning of August since a party is not supposed to keep delaying the filing of the appeal until the last date. I do not approve this dictum since it is the right of the appellant to file an appeal even on the last date. But if this period is computed, the appeal could not have been filed in the month of August op account of vacations in the civil Courts.
6. The petition is dismissed in limine.