DAYA SHANKER Vs. JWALA PRASAD

JUDGEMENT

(1.) This second appeal preferred by the appellant/defendant under Section 100 of CPC has been admitted for hearing on the following substantial question of law :-

(2.) The plaintiffs filed a civil suit for permanent injunction in respect of the suit land bearing Survey No.121 and 122 area 0.37 and 0.22 acre situated at Village Murmur Tashil Pendra Raod. The learned trial Court vide judgment and decree dated 30.01.2009 decreed the suit in favour of the plaintiff, against which the defendant preferred an appeal before the first appellate Court. Since the appeal was barred by limitation, application under Section 5 of the Limitation Act supported with an affidavit for delay of 75 days was also filed stating that due to illness, he could not file the appeal within time.

(3.) The said application for condonation of delay was not controverted by the other side, but learned first appellate Court, finding no merit in the said application, rejected it holding that no sufficient cause had been shown by the defendant for delay of 75 days in filing the appeal and no affidavit has been filed in support of his application for condonation of delay and consequently, dismissed the appeal vide judgment and decree dated 16.8.2010, against which this second appeal has been preferred by the appellant/defendant.