TRIBHUWAN Vs. SUNDRI BAI

JUDGEMENT

(1.) This is plaintiffs' Second Appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.) against the order dated 07.10.2017 passed by the 3rd Additional District Judge, Surajpur, Dist. Surajpur (C.G.) in CNR No.-CGSJ010001062011, by which, the lower appellate Court has rejected the application for condonation of delay in preferring the first appeal by the plaintiffs under Section 96 of C.P.C. and consequent upon that, dismissed the appeal.

(2.) Brief facts leading to this appeal are that the plaintiffs instituted a suit for declaration of title and injunction praying for restraining the defendants from interfering with their peaceful possession with regard to the plaint Schedule-A property. Upon receiving summons of the suit, the defendants made their appearance and contested the suit and, eventually by judgment and decree dated 15.12010, the trial Court has decreed the suit in part.

(3.) Being aggrieved with the aforesaid judgment and decree, plaintiffs (appellants) have preferred an appeal in respect of refusal of their part claim on 01.04.2011 under Section 96 of the C.P.C., along with an application for its condonation of delay of 77 days', as per the provisions prescribed under Section 5 of the Indian Limitation Act, 1963 (for short the Act of 1963) duly supported by an affidavit. It is submitted by the plaintiffs in their application for condonation of delay that they were not aware with regard to the delivery of the said judgment and decree dated 15.12.2010 and came to know for the first time on 05.02011 when the defendants disclosed in the village that they have succeeded in the suit. Upon knowing the said fact, the plaintiffs have approached their counsel and applied for obtaining the certified copy of the said decree on 07.02011 and in pursuance thereof, the certified copy of the said judgment and decree was delivered on 11.02011 and immediately thereafter the appeal has been filed on 01.04.2011. Therefore, the delay has thus occurred bona fidely and there is no mala fide intention behind it and being rustic villagers they could not prefer the appeal in time, therefore, the delay of 77 days in filing the appeal be condoned.