MITTHU DAS Vs. KHAGRAJ SINGH

JUDGEMENT

(1.) This second appeal preferred by the plaintiff/appellant herein was admitted for hearing by formulating the following substantial question of law: -

(2.) The plaintiff's/appellant's suit for declaration of title and permanent injunction was decreed partly confining to the suit house, but dismissed with the regard to the suit plot on 28-12- 2006. Against the judgment and decree of the trial Court, the plaintiff preferred appeal on 6-10-2008 with a delay of 613 days along with an application for condonation of delay assigning reason that the appellant was misled and thinking that the suit has been decreed in toto, he could not prefer appeal, but filed application before the Nagar Panchayat, Pandariya that he was only granted declaration of suit house and of suit plot, but on 2-8- 2008, it was rejected with regard to the suit plot by which he decided to prefer appeal against the judgment and decree refusing decree with regard to the suit plot. The application was supported by affidavit stating the facts which were not controverted by the other side, but yet, the first appellate Court was of the opinion that the impugned decree of the trial Court is quite clear and there is no doubt that the suit was partly decreed by granting decree in respect of the suit house, but dismissed in respect of the suit plot and therefore the plaintiff is not entitled for condonation of delay of 613 days in filing the appeal and thus, dismissed the appeal against which this second appeal has been preferred in which substantial question of law has been framed which has been set-out in the opening paragraph of this judgment.

(3.) Mr. Vivek Kumar Tripathi, learned counsel appearing for the appellant herein/plaintiff, would submit that there is no reason for not preferring appeal, as the plaintiff was misled by the judgment of the trial Court that suit has been decreed in toto as having suffered adverse decree with regard to the suit plot. There was no reason in filing the appeal within time, when the application for mutation was rejected by the Nagar Panchayat on 2-8-2008 with regard to the suit plot, he came to know that suit has been dismissed with regard to the suit plot and appeal has to be preferred against the same. Facts mentioned in the application for condonation of delay were not controverted by the other side, therefore, the first appellate Court ought to have granted that application, but, erroneously, though the grounds mentioned in the application constituted sufficient cause for condoning the delay, yet, it was not accepted. The first appellate Court went wrong in not construing the grounds mentioned in the application for condonation of delay liberally especially when the delay is not deliberate or mala fide and it is bona fide. Therefore, the impugned order of the first appellate Court deserves to be set aside by allowing the appeal.