RAMDAYAL SAHU Vs. DASHMAT BAI

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in this appeal preferred by the plaintiff / appellant herein is as under: -

(2.) The plaintiff's suit for declaration of his easementary right over the suit land and permanent injunction was dismissed on 30-4-2011. Feeling aggrieved against the said judgment & decree, he preferred first appeal under Section 96 of the Code of Civil Procedure, 1908 with a delay of 20 days along with an application for condonation of delay under Section 5 of the Limitation Act, 1963 in filing the said appeal stating inter alia that the plaintiff through his Mukhtiarnama handed-over the case along with necessary expenses and entire file to Mr. K.K. Yadu, Advocate at Baloda Bazaar to file first appeal on his behalf before the first appellate Court, but before the first appeal could be filed before the Court, Mr. K.K. Yadu, Advocate, fell ill and when the plaintiff enquired about the filing of said appeal, on 24-6-2011, he came to know that the said counsel Mr. Yadu is seriously ill and he was not attending the court, therefore, appeal could not be filed on which he immediately withdrawn his case file from the said counsel and handed-over the case to Mr. B.P. Singh, Advocate to prefer appeal, however, in the meanwhile, delay of 20 days occurred in preferring the appeal and therefore application for condonation of delay in filing the appeal was filed on 27-6-2011. The appeal was listed for hearing before the lower appellate Court on 27-6-2011 and on that day, the Reader was directed to submit report on 28-6-2011 and accordingly, the Reader submitted report on 28-6-2011 and the matter was posted on 30-6- 2011 and it was heard on the application for condonation of delay on 30-6-2011 and on 1-7-2011, the application for condonation of delay has been dismissed as no document has been filed evidencing the illness of Mr. K.K. Yadu, Advocate and also for the reason that the affidavit of the said counsel has not been filed and that would not constitute sufficient cause for delay within the meaning of Section 5 of the Limitation Act, 1963 and consequently, the appeal has also been dismissed. Questioning that judgment & decree, this second appeal under Section 100 of the CPC has been preferred in which substantial question of law has been formulated which has been catalogued in the opening paragraph of this judgment.

(3.) Mr. Anil Singh Rajput, learned counsel appearing for the appellant herein / plaintiff, would submit that there is uncontroverted material on record in the shape of affidavit of the appellant's power of attorney in support of the application for condonation of delay evidencing reasons for delay in filing the appeal as his appointed counsel Mr. K.K. Yadu fell ill and could not prefer appeal well in time, but that has not been considered and merely because the affidavit of the concerned counsel and other documents have not been filed, in a very casual and cavalier manner, the application for condonation of delay has been rejected, as sufficient cause has to be construed liberally and delay of 20 days has duly been explained constituting sufficient cause which could not have been rejected by the learned first appellate Court, as such, the impugned judgment & decree deserve to be set-aside.