Sukhwati Bai and Others vs Kunwarlal and Others

Vandana Kasrekar, J—The appellants filed a civil suit for declaration of title as well as permanent injunction.

The trial Court vide its judgment and decree dated 21/12/2006 has dismissed the suit filed by the appellants. Against the said judgment and decree the appellant has preferred an appeal before 2nd Additional District Judge, Chhindwara along with application for condonation of delay.

The first appellate Court, vide its judgment and decree dated 8/1/2008, has dismissed the application filed by the appellants under Section 5 of the Limitation Act, consequently, the appeal was also dismissed. Against the said judgment and decree, the appellant has filed the present second appeal.

Today this admitted the appeal on the following substantial question of law :

"Whether the first appellate Court has erred in dismissing the appeal on the ground of limitation ?"

Learned counsel for the appellant Submits that the first appellate Court has committed an error in dismissing the application for condonation of delay on technical ground He submits that the delay was properly explained by the appellants, however, the first appellate Court has failed to consider the grounds raised by the appellants in the application for condonation of delay. He placed reliance on the judgment delivered by the Apex Court in the case of Municipal Corporation, Gwalior Vs. Ramcharan (D) by Lrs. and Others, AIR 2003 SC 2164 : (2002) 142 ELT 275 : (2002) 4 JT 346 : (2002) 4 SCALE 38 : (2002) 4 SCC 458 : (2002) 2 UJ 838 : (2002) AIRSCW 1946 : (2002) 3 Supreme 446 .

Learned counsel for respondent No. 1, supports order passed by the first appellate Court and stated that the first appellate Court has not committed any error in dismissing the application filed by the appellants under Section 5 of the Limitation Act.

I have heard learned counsel for the parties and perused the record as well as judgment passed by the first appellate Court. On perusal of the record, I find that the first appellate Court has erred in dismissing the application filed by the appellants under Section 5 of the Limitation Act by adopting a technical view. The appellants have properly explained the delay in filing the appeal and the grounds which stated in the application for condonation of delay are sufficient to condone the delay. The Apex Court in the case of Ramcharan (D) by L.Rs. and others (supra) in para-3 has held as under :

"3. The contest before this Court has been more vehement than what it appears to have been before the High Court. It is true that sanctity attaches with the record of Court proceedings. However, in the present case the question is not so much of casting a doubt on the record of proceedings maintained by the Court as is on testing the bona fides of the counsel who filed his own affidavit in support of the application under Section 5 of the Limitation Act. The counsel and the Revenue Officer, who filed their affidavits, do not have any personal interest in the matter. The learned Advocate appearing for the Municipal Corporation was not going to gain anything either by remaining absent at the time of hearing of the first appeal or by assigning a false cause for his non- appearance at the time of hearing. Valuable rights of the parties in an immoveable property are involved. On the totality of the facts and circumstances of the case, we are of the opinion that the High Court ought to have been taken a liberal and not a rigid and too technical a view of the issue before it and should have condoned the delay in filing the appeal and concentrated on examining whether the appeal raised any substantial question of law worth being heard by the High Court. In our opinion, a sufficient cause for condoning the delay in filing the appeal before the High Court is made out."

In the light of the aforesaid judgment delivered by the Apex Court, the appeal filed by the appellants deserves to be and is hereby allowed. The substantial question of law is answered accordingly. The judgment and decree passed by the first appellate Court is hereby set aside and the matter is remanded back to the first appellate Court. The first appellate Court is directed to decide the appeal on merit after issuing notice to the parties.

The appeal stands allowed with no order as to costs.