Pramod Kumar Srivastava, J.:— Original Suit No. 591 of 1979 (Smt. Razia Khan v. Mohd. Tariq @ Zafar Alam) was decreed ex parte. Against the said judgment, civil appeal no. 395 of 1981 (Mohd. Sahid v. Mst. Razia Khan) was preferred which was dismissed. Then defendants-appellants again preferred restoration application which was allowed and said civil appeal was restored to its original number. After that said civil appeal was allowed and case was remanded to the trial court for rehearing. Against the said judgment, Civil Misc. Writ petition No. 19550 of 1985 (Smt. Razia Khanam v. 7th Additional District and Sessions Judge, Azamgarh) was preferred in which initially proceedings of the trial court were stayed, but later on this writ petition was dismissed and proceedings of Original Suit No. 591 of 1979 were carried on.
2. During proceedings of original suit issues were framed and preliminary objections were disposed of in presence of parties and date was fixed for evidences and final hearing. Then in original suit plaintiff filed its evidences in form of affidavit and date was fixed for cross-examination of plaintiff's witness. But then defendants (present appellants) absented themselves, so case again proceeded ex-parte and was dismissed by judgment dated 10.05.2012 of the trial court. Then plaintiffs preferred Civil Appeal no. 131 of 2013 with application 4-C for condonataion of delay under Section 5 of the Indian Limitation Act.
3. The first appellate court had invited objection on application 4-C for condonation of delay and after affording opportunity of hearing, the said application was rejected by the order dated 05.08.2015 of Additional District Judge, Court No. -5, Azamgarh. Against this impugned and order dated 05.08.2015 of appellate court, as well as judgment of original suit, this second appeal has been filed by defendants of original suit.
4. Heard learned counsel for the parties and perused the record.
5. Original Suit No. 591 of 1979 was decided by the trial court on 10.05.2012 against which first appeal was preferred by defendants appellants on 25.05.2013. Limitation of filing of the first appeal is 30 days and it was instituted beyond 249 days after lapse of period of limitation. For condoning such delay, the application 4-C under Section-5 of Limitation Act was moved, the copy of which is annexure 6 to the short counter-affidavit filed by the plaintiffs/respondents.
6. In said application 4-C, the appellant had stated that for the first time, he came to know about the judgment of the trial court on 06.05.2013 when he was in tehsil Ghosi of district Mau. The said information was given to him by constable of police station. After knowledge of said judgment and decree dated 10.05.2012, he contacted with his lawyer and directed him to inspect the file. At another place in said application, it was written by defendant-appellant that he was out of station from 03.05.2013 to 09.05.2013 as he went to Lucknow from Ghoshi. These facts in this case are self contradictory. It appears not possible that a constable of police station Ghoshi may have knowledge of the judgment of Azamgarh passed against unrelated appellants. Apart from it according to averment in his application 4-C, defendant-appellant was in Lucknow from 3.5.2013 to 9.5.2013, therefore, it was improbable that any constable of police station Ghoshi district Mau could inform him about the judgment of trial court in tehsil Ghoshi of district Mau on 06.05.2013. The explanation of these facts could not be given by counsel for the appellants during arguments.
7. Certified copy of the order-sheets dated 11.10.2011 and 14.10.2011 of original suit no. 591 of 1979 are on record which shows that on 11.10.2011 parties were present in trial court at the time of hearing when plaintiffs' side drew the attention of the Court that Civil Misc. Writ Petition no. 19550 of 1985 was dismissed on 20.02.2001 and interim stay passed in said case has been vacated. These facts prove that this contention of appellant's side is incorrect that appellants defendants had no knowledge of decision of writ petition no. 19550 of 1985 and its judgment, because said facts were mentioned in order-sheet of original suit in present of the parties. These order-sheets also make it clear that the trial court had framed issues in presence of parties and also that two preliminary issues relating to valuation of the suit and insufficiency of court fees were decided in presence of parties. These order-sheets also mentioned the presence of both the parties in trial court on 14.10.2011 when plaintiff's side had filed evidence in form of affidavit and the date of 18.10.2011 was fixed for cross-examination of plaintiff's witness PW-1. These order-sheets prove that appellant had full knowledge of vacation of stay order passed in Writ petition no. 19550/1985 and about the proceedings of the original case. So the contention contrary to these facts mentioned in application for condonation of delay before first appellate court were found incorrect. It appears that defendant-appellants had deliberately mentioned incorrect facts in condonation of delay in first appeal.
8. The first appellate court had considered the grounds mentioned in application 4-C for condonation of delay and objection filed against it. It had also considered other documentary evidences because it is mentioned in impugned order that during proceedings before the court of Sub-Divisional Magistrate, the appellants had given application dated 23.11.2012 in which they had mentioned that original suit no. 591/1979 was decreed by court of civil judge on 10.05.2012. The first appellate court had also considered meticulously the grounds mentioned in application 4-C and after discussing them and considering the adduced available evidences it held that ground for condonation of delay of 249 days in filing first appeal have not been explained. The trial court had also considered the legal position of the matter and held that though it has been held by superior courts that for condonataion of delay, the lenient view should be adopted as rule but defendant-appellants are not entitled for lenient approach; law is for the help of vigilant litigant and not for the person who is negligent and sleeps over his own rights. On the basis of well discussed order, based on acceptable findings the first appellate court had found that grounds mentioned in application for condonation of delay moved by appellants are not sufficient so it had rejected the said application by impugned order dated 05.08.2013. There appears no factual legal or procedural illegality or irregularity in passing of the impugned order which appears acceptable and legally correct.
9. On examination of the reasonings recorded by the first appellate court, based upon proper appreciation of the entire evidence on record there arises no question of law, much less a substantial question of law involved in the case before this Court. No perversity or infirmity is found in the findings of fact recorded by the first appellate court. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained.
10. In view of the above, second appeal is dismissed.