SHATRUGHAN KURMI Vs. LAXMAN SINGH KURMI

JUDGEMENT

(1.) THE appellants-defendant being aggrieved by the order dated 16. 7. 08 passed by District Judge, Seoni in M. J. C. No. 18/07 dismissing his application filed under Section 5 of the Limitation Act for condoning the delay in filing the first appeal against the judgment and decree dated 4. 4. 07 passed by Civil Judge Class II, Seoni in Civil original Suit No. 81-A/04 decreeing the suit of the respondents/plaintiff against him for declaration, partition and separate possession has filed this appeal. Accordingly the appeal filed by the appellant under Section 96 of the CPC was dismissed without considering the merits only on the question of limitation.

(2.) THE facts giving rise to this appeal in short are that the respondents no. 1 to 3 filed the aforesaid suit for declaration, partition and possession against the appellant and respondent no. 4 by impleading the State of M. P. as formal party with respect of some agricultural land described in the plaint which is situated at village partapur. The appellant and the respondent no. 4 by filing their written statements disputed the averments of plaint with some additional pleadings. After casting issues and recording evidence, on appreciation of the same, the trial court partly decreed the suit in favour of the respondent no. 1 to 3 and directed the parties to approach the collector for separate possession according to their declared share. Such judgment and decree was challenged by the present appellant before the subordinate Appellate Court alongwith an application under section 5 of the Limitation Act as such the appeal was preferred barred by 78 days. After filing the reply of such application by respondent no. 1 to 4, the same was considered and dismissed by the Appellate Court holding that appellant could not make out sufficient cause for condoning the alleged delay in filing the appeal. In such premises, the appellate Court has not adjudicated the matter on merits. Against such order the appellant has come forward to this court and on earlier occasion, vide order dated 11. 2. 09 this appeal was admitted for final hearing on the following substantial question of law:-

(3.) IN the course of arguments, respondents' counsel Shri A. D. Mishra fairly submitted that he does not have any objection if after answering the aforesaid question in favour of the appellant for condoning the alleged delay in filing the appeal under Section 96 of the cpc, this matter is remitted to the first Appellate Court to adjudicate the same on merits. He further prayed that on sending the matter to such court, some time limit be fixed for final adjudication of such appeal. Appellant's counsel also does not have any objection if after answering the question in his favour, this matter is remitted to the trial court with the direction, as prayed by the respondents' counsel.