1. Heard on admission.
The appeal is admitted for hearing on the following
substantial question of law :
Whether the Lower Appellate Court erred in
dismissing the appeal as barred by limitation, though
the delay for sufficient cause was explained in terms
of Section 5 of Indian Limitation Act and the law laid
down by the Apex Court in that regard.?
With the consent of the parties, the appeal is also heard
finally.
Brief facts necessary for adjudication of the present
appeal are that the appellants/plaintiffs filed a suit for
declaration of their entitlement of equal share with the
defendant no.1 in respect of the sale consideration,
which has been deposited with the Bank received from
the sale of the ancestral property. The suit was dismissed
by the trial court vide judgment and decree dated
08-07-2015, passed in Civil Suit No.31-A/2015.
2. Being aggrieved by the aforesaid judgment and decree
, the appeal was filed after expiration of the period of
limitation of 30 days alongwith an application for
condonation of delay. The said appeal has been dismissed
as barred by limitation rejecting the application for
condonation of delay. Challenging the aforesaid
judgment and decree, the present appeal has been filed
and this court has admitted the appeal, as substantial
question of law arises for consideration as under :
???Whether the Lower Appellate Court erred in
dismissing the appeal as barred by limitation, though
the delay for sufficient cause was explained in terms
of Section 5 of Indian Limitation Act and the law laid
down by the Apex Court in that regard.?
3. It is contended by the learned counsel for the appellants that the appellants did not receive any communication about the judgment and decree from the Advocate, who was representing in the trial court. When the appellant/plaintiff Nandkishore contacted the Advocate to know about the progress of the case then on 08-01-2016, he came to know about the dismissal of the suit . On the same day, an application was made through another counsel for obtaining certified copy. Certified copy was received on 22-01-2016 and on the very next day i.e.23-01-2016, the present appeal was filed.
4. The Lower Appellate Court dismissed the appeal on the ground that the appellants could not explain the delay properly.
5. Before adverting to the legal provisions and the judgments of the Apex Court regarding the consideration for an application for condonation of delay, it is apt to reproduce the paras 2 to 4 of the application filed under section 5 of the Indian Limiation Act.
"VERNACULAR MATTER OMITTED"
6. Learned counsel for the appellants submitted that instead
of adopting such hyper technical and strict view in the matter
of condonation of delay, the Appellate Court ought to have
taken liberal view in the matter.
7. Per contra, learned counsel for the respondents submits that there is no illegality in the impugned order and since the appellants have failed to explain the delay, therefore, the Lower Appellate Court has rightly dismissed the appeal as time barred.
8. Before adverting to the legal provision of law in the field of condonation of delay, it is apposite to refer the provisions of Section 5 of the Indian Limitation Act, which is reproduced as under :
5. Extension of prescribed period
in certain cases.- Any appeal or any
application, other than an application
under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908 (5
of 1908), may be admitted after the
prescribed period, if the appellant or
the applicant satisfies the court that he
had sufficient cause for not preferring
the appeal or making the application
within such period.
Explanation.- The fact that the
appellant or the applicant was misled by
any order, practice or judgment of the
High Court in ascertaining or
computing the prescribed period may
be sufficient cause within the meaning
of this section.
The Apex Court in the case of G.Ramagowda Vs. Special
Land Acquisition Officer, AIR 1988 SC 897 held as under
:
The expression ''sufficient cause'' in
section 5 must receive a liberal
construction so as to advance
substantial justice and generally delays
in preferring appeals are to be
condoned in the interest of justice
where no gross negligence or deliberate
inaction or lack of bona fides is
imputable to the party seeking
condonation of the delay.???
Prior to this, the Apex Court in the case of Collector, Land
Acquisition, Anantnag and another Vs. Mst.Katiji and
others, (1987)2 SCC 107 , held that to determine the word
''sufficient cause'', courts should adopt a liberal and justiceoriented
approach.
9. In the case of 10. In the case of Ramlal and others Vs. Rewa Coalfields Ltd. AIR 1962 Supreme Court 361, the Apex Court held that question of diligence during the period of limitation is not relevant in considering the application under Section 5 of the Indian Limitation Act. It becomes relevant only when the question of exercising discretion to condone the delay under section 14 arises.
11. In the light of the aforesaid authoritative pronouncement of the Apex Court and taking into consideration the facts of the present case and the averment made in the application for condonation of delay that the appellants did not receive any communication from the Advocate till one of the appellant contacted the counsel to know about the progress, I find sufficient cause and the Appellate Court ought to have condoned the delay and decided the appeal on merit.Nothing contrary material is brought to the notice of this court by the respondents that there was communication or knowledge of the judgment and decree passed by the trial court.
12. In view of the aforesaid, this appeal is allowed as it is found that the impugned judgment and decree is contrary to the law laid down by the Apex Court and this court in respect of Section 5 of the Indian Limitation Act. The impugned judgment and decree passed by the Lower Appellate Court is set aside. The case is remitted back to the Lower Appellate Court with a request to treat the first appeal of the appellant as within limitation and to hear and decide the same expeditiously preferably within a period of 4 months from the date of production of the certified copy of the judgment and decree passed today. Parties are since represented before this court , they are directed to remain present before the Lower Appellate Court on 18-05-2017 alongwith a certified copy of the order passed today.
13. The Registry is directed to send back the records of the courts below immediately to the Lower Appellate Court for the purpose of hearing of the first appeal.
14. With the aforesaid, the appeal is allowed and finally disposed of.
