MADHYA PRADESH GRIH NIRMAN MANDAL Vs. KAMALA DEVI

JUDGEMENT

(1.) THIS is a second appeal filed by the plaintiff under Section 100 of C.P. Code against the judgment/decree, dated 27.2.1992, passed by learned District Judge, Ujjain in First Civil Appeal No. 1 -B of 1991, No. 24 -A of 1991 which in turn arises out of Civil Suit No. 102 -B of 1988, decided by 3rd Civil Judge, Class I, Ujjain on 20.11.1990. This appeal was admitted for final hearing on following substantial questions of law: 1. Whether the first appellate Court erred in not affording a reasonable opportunity to the appellant to meet the objections as to limitation or to move an application for condonation of delay?

(2.) RESPONDENT (plaintiff) filed a suit against the respondents for recovery of Rs. 10,455/ - before Civil Judge, Class II, out of which this second appeal arises. The suit was contested by the appellant. By judgment and decree, dated 20.11.1990, the learned trial Judge decreed the suit. The appellant i.e. defendant felt aggrieved, filed first appeal before the District Judge, Ujjain. Since, in the opinion of learned first appellate Judge, the first appeal was filed beyond the period of limitation prescribed and, therefore, the appeal was also dismissed having been filed beyond the period of limitation without even giving any opportunity to file an application for condonation of delay under Section 5 of Limitation Act. It is against this judgment and decree, this second appeal has been preferred by the defendant, which as stated supra, was admitted for final hearing on aforementioned substantial questions of law.

(3.) HAVING heard learned Counsel for the parties and having perused record of the case, I am inclined to allow the appeal by answering substantial questions of law framed in favour of the appellants/defendants and while setting aside of the impugned judgment/decree, remand the case to the lower appellate Court for deciding the appeal on merits.