BRIJLAL SAHU, Vs. TIKARAM SAHU,

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered by this Court in this defendants' second appeal is as under:­

(2.) The plaintiffs are sons of defendant No.1 and defendants No.2 and 3 are also sons of defendant No.1. The plaintiffs being sons of defendant No.1 filed a suit for declaration of title, partition and separate possession in which the present defendants proceeded ex­parte and ultimately, on 13.6.2006 ex­parte decree for partition and possession was passed in their favour and against the defendants. Since the defendants were ex­parte, they could not know about the passing of the decree and when they received the notice of Tahsildar of partition proceeding they applied for certified copy on 29.8.2006 which was received on 31.8.2006 and they preferred an appeal on 15.9.2008 with a delay of 90 days in preferring appeal and application for condoation of delay stating inter­alia that on account of being ex­parte and they could not know about the notice of suit, they could not prefer appeal right in time. The application was supported by affidavits of all three defendants before the first appellate Court. No counter affidavit was filed controverting the statement made in the application for condonation of delay, but the first appellate Court held that since the date on which they received the notice of Tahsilar has not been mentioned in the application, therefore, no sufficient cause has been shown and held that sufficient cause has not been shown and accordingly, rejected the application for condonation of delay and consequently dismissed the appeal, against which, this second appeal under Section 100 of the CPC has been preferred by the appellants/defendants, in which substantial question of law has been formulated by this Court, which has been set­out in the opening paragraph of this judgment for sake of completeness.

(3.) Mr.Vivek Tripathi, learned counsel for the appellants/defendants, would submit that the first appellate Court went too technical in rejecting the application for condonation of delay as sufficient cause has been shown for not preferring the appeal within time. The first appellate Court ought to have condoned the delay in preferring the appeal as there is no counter­affidavit controverting the statement made in the application for condonation of delay, as such, the delay be condoned and the matter be remitted to the first appellate Court for deciding the appeal afresh.