Hans Raj and Others

                                                           Vs

                                         Sundar Lal Aggarwal and Others

                                          Civil Appeal No. 1745 of 1980

                             (R. S. Sarkaria, A. C. Gupta, E. S. Venkatramiha JJ)

                                                      20.07.1980

                                                     JUDGMENT

SARKARIA, J. ­

1. Special leave granted.

2. Having heard the learned counsel on both sides we allow this appeal and set aside the impugned
judgment on the short ground that the High Court does not appear to have applied its mind at all to
the averments made in the application under Section 5, Limitation Act filed in R. F. A. No. 1 of
1962. As is apparent from the impugned judgment of the Letters Patent Bench, it was labouring
under the mistaken impression that in that application "no ground for condonation of delay was
mentioned". We therefore send the case back to the Appellate (L. P.) Bench of the High Court with
the direction that it should restore the L. P. A. to its original numbers, apply its mind to the
averments made in the application dates August 4 1973 under Section 5 of the Limitation Act in R.
F. A. No. 1 of 1962 as well as to the affidavit, if any, in support of those averments. It was
contended as to the affidavit, if any, in support of those averments. It was contended before us by
Shri Shanti Bhusan, the learned counsel for the respondent, that the application under Section 5 of
the Limitation Act was not supported by nay independent affidavit and that was a fatal flaw. The
High Court shall, inter alia, consider this contention also and therefore first dispose of these
applications i.e. one under Order 22, Rule 4 of the Code of Civil Procedure and the other under
Section 5 of the Limitation Act and then in the light of that disposal, decide these appeals afresh, if
possible within two months from the date of the receipt of the record. Costs will abide the result in
the High Court.

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