SILVESTER LAKRA Vs. VIJAY KUMAR

JUDGEMENT

(1.) By this second appeal under Section 100 of the Civil Procedure Code, 1908 appellant has challenged the legality and propriety of the order dated 21/4/10 passed by 3rd Additional District Judge, (F.T.C.) Raigarh C.G. (also mentioned as 4th Additional District Judge F.T.C.) in unregistered civil appeal (Silvester Lakda v. Vijay Kumar) whereby first appeal filed against order dated 14/9/06 passed by First Civil Judge Class-2, Raigarh in civil suit No. 252A/06 whereby First Civil Judge Class-2, Raigarh has dismissed the suit as not maintainable in terms of Section 11 of the Civil Procedure Code, 1908 (in short 'the Code') Lower Appellate Court has dismissed the appeal on the ground of limitation. Present second appeal has been admitted for consideration on the following substantial questions of law:--

(2.) Shri H.S. Patel, Advocate for the appellant is heard.

(3.) Order impugned and record of the Court below perused. Order impugned and record of the Court below reveal that present appellant has filed application for condonation of delay in filing appeal on the ground that it was not informed by his counsel. Appellant has filed affidavit in support of his contention but has not filed any affidavit of the concerned Advocate. Appellant has filed appeal before Lower Appellate Court on 26/6/08 after lapse of about 1 year and 9 months definitely, appeal was preferred after lapse of considerable time and appellant was under obligation to explain delay in filing such appeal but Court below was required to take liberal approach in considering such explanation especially facts that whether it was possible for appellant to obtain affidavit from the advocate relating to negative facts and the facts which would have been non ethical to the counsel. Considering the aforesaid facts and claim of appellant appeal ought to have been decided on merits after condoning delay but by not condoning delay and dismissing appeal on the ground of limitation Lower Appellate Court has committed an illegality. Consequently, substantial question of law formulated for decision of this second appeal is decided as positive. On the basis of decision on substantial question of law, second appeal is allowed. Order impugned passed by Lower Appellate Court is hereby set-aside. Case is remanded back to the Lower Appellate Court for providing opportunity of hearing to the parties and deciding case afresh on merits after allowing application for condonation of delay in filing appeal. Appellant shall appear before the Lower Appellate Court on 17/1/2012 and Lower Appellate Court shall after issuing notice to the respondents decide the appeal. No order as to costs.