LAWS(CHH)-2021-2-109

PURAN RAM Vs. BIHANI

Decided On February 15, 2021
PURAN RAM Appellant
V/S
Bihani Respondents

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered in this plaintiff's second appeal are as under:

(2.) The plaintiff's suit was dismissed by the trial Court for want of prosecution, however, granted counter claim filed by the defendants, against which, the plaintiff preferred first appeal under Section 96 of the CPC with a delay of 28 days in filing the appeal supported by affidavit. The first appellate Court tookup the matter and firstly rejected the application for condonation of delay and thereafter dismissed the appeal on merits also holding that against exparte decree the only remedy of the plaintiff is to file an application under Order 9 Rule 13 of the CPC and no appeal would lie under Section 96 of the CPC, against which, this second appeal under Section 100 of the CPC has been filed by the legal representatives of the plaintiff, in which two substantial questions of law have been framed and set out in opening paragraph of this judgment for sake of completeness.

(3.) Mr.Vijendra Singh, learned counsel for the appellants/legal representatives of the plaintiff, would submit that the first appellate Court has taken hypertechnical view of the matter by holding that no sufficient cause has been shown for delay of 28 days in preferring the appeal. He would further submit that if delay is not condoned, no finding could have been recorded on merits of the matter.