Shankar Jee vs Surendra Kumar Gupta and Others

M.L. Visa, J.—Counsel on behalf of Appellant and Respondents are present.

With the consent of both the parties this appeal is being finally disposed of at this stage.

This Misc. Appeal has been filed against the order dated 6.3.2002 passed in Misc. Case No. 1 of 2002 filed for restoration of Title Appeal No. 24 of 1991 by Additional District Judge-1, Chapra, dismissing the case.

Learned Counsel of Appellant submits that father of Appellant had filed Title Suit No. 100 of 1982/186 of 1989 for declaration of title and recovery of possession which was dismissed and thereafter father of Appellant filed Title Appeal No. 24 of 1991 which was dismissed on 25.6.2001 for non-prosecution. It is further submitted that the fact that Title Appeal No. 24/91 was dismissed came to the knowledge of Appellant on 20.1.2002 when Respondents started fixing pillars on the suit land and thereafter Appellant came to Chapra Civil Court on 2.1.2002 and applied for inspection of records and inspected the records, on 23.1.2002 and thereafter he fell ill due to cold and fever and after recovery from, illness, Misc. Case No. 1/2002 was prepared on 28.1.2002 and was filed on 29.1.2002. It is also submitted that 26.1.2002 and 27.1.2002 were holidays. Learned Counsel of Appellant further submits that an application u/s 5 of Limitation Act for condoning the delay in filing the Misc. Case was also filed but the court after hearing the parties dismissed the case.

Learned Counsel of Respondents has supported the impugned order by stating that since the Appellant had filed Misc. Case with delay, therefore, court below has rightly dismissed the same.

From the impugned order it appears that the court below has dismissed the Misc. Case of Appellant on the ground that there is no explanation by Appellant with regard to 22.1.2002, 24.1.2002, 25.1.2002 and 28.1.2002. From the perusal of the record it appears that a petition u/s 5 of Limitation Act for condonation of delay in filing the Misc. Case was filed and in para-5 of the limitation petition it is stated that Appellant fell ill on 22.1.2002 and thereafter the court was closed and this caused delay in filing the Misc. Case, he impugned order further shows that a decision of this Court in the case of Baleshwar Mochi Vs. Kundan Devi and Others, , was relied upon in which it as been held that "the court also should e liberal in interpreting the explanation for delayed filing of the miscellaneous case and no technical view can be taken regarding the explanation of each and every day delay" but it appears that the court below by observing that the principle laid down in the aforesaid decision can not be applied in the present case in which no explanation is furnished at all dismissed the case.

In my opinion, when the Appellant furnished explanation for the delay occurred from 22.1.2002 to 28.1.2002 on account of is illness the court below should have accepted it and besides this, the case of Appellant is that appeal was filed by his father who was taking all necessary steps the appeal and after his death, name of resent Appellant was substituted in his lace.

In view of the aforesaid facts this appeal is allowed, impugned order dated 6.3.2002 is set aside and Title Appeal No. 24 of 1991 is restored to its original number and file.