Nahim Bero vs Johar Singh Neuor

B.P. Saraf, J.—This second appeal is directed against the judgment and order dated 13.4.1983 passed by the Assistant District Judge No. 1, Gauhati dismissing the title appeal No. 27/81 as time-barred.

The Facts of the case are as follows:

This Appellant was the Plaintiff in a suit being title suit No. 1 of 1969 which was dismissed by the Munsiff Nalbari on 10-8-81. An appeal was filed by the Plaintiff on 23-12-81. As there was some, delay in filing the appeal, along with the appeal, a petition u/s 5 of the Limitation Act was also filed praying for condo nation of delay, The appeal was admitted for hearing subject to the question of limitation. On 5-4-1983, the appeal was taken up for hearing by the learned Assistant District Judge No. 1 at Gauhati, who by order dated 13-4-1983, refused to condone the delay and dismissed the appeal as barred by limitation. The prayer for condo nation was rejected on the ground that the Appellant failed to explain every day''s delay. Against the said order of dismissal of the appeal as barred by limitation, the present second appeal has been filed.

I have heard Mr. N.S. Deka, learned Counsel for the Appellant and also perused the judgment of the learned Assistant District Judge No. 1, Gauhati dismissing the appeal as barred by limitation. I have also considered the grounds for condo nation of delay put forwarded by the Appellant. It appears that there was sufficient cause for the delay which might justify condo nation of delay in filing the appeal. The Assistant District judge took a very strict view in the matter and rejected the petition for condonation. I find that the approach of the Assistant District Judge is not in consonance with the latest decisions of the Supreme Court, more particularly the decision in Collector, Land Acquisition v. Mst. Katiji where it was held "Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner."

In that view of the matter, the judgment and decree of the learned Assistant District Judge No. 1, Gauhati in Title Appeal No. 27/81 are set aside. The delay in filing the appeal is condoned subject to the payment of a sum of Rs. 250/- by the Appellant to the Respondent within one month from today. The appeal is restored to file. The learned Assistant District Judge No. 1, Gauhati is directed to hear the appeal and decide the same on merits after giving proper opportunity of hearing to the parties. As the matter is a very old one, I direct that the appeal may be disposed of as expeditiously as possible, preferably within a period of four months.

In the result, the appeal is allowed.