RAMVRIKSHA GOND Vs. BABULAL GOND

JUDGEMENT

(1.) This second appeal preferred by the appellants/plaintiffs 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 declaration of title and for permanent injunction in respect of the land described in Schedule -B annexed with the plaint. The learned trial Court vide judgment and decree dated 30.10.2007, dismissed the suit of the plaintiffs, against which the plaintiffs preferred an appeal under Section 96 of the CPC 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 72 days was also filed stating that against the order of the dismissal of the suit, the plaintiffs preferred MA No.06/2008 under Order 43 Rule 1(U) of the CPC before the High Court and that has been dismissed as withdrawn on 08.5.2008. Thereafter appeal was preferred before the first appellate court on 24.8.2009 with a delay of 72 days.

(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rejected it holding that since MA No.06/2008 preferred by the plaintiffs before the High Court has been dismissed as withdrawn, application for condonation of delay has no force and consequently, dismissed the appeal vide judgment and decree dated 14.7.2010, against which this second appeal has been preferred by the appellants/plaintiffs.