LOKPAL SINGH AND ANOTHER Vs. MATRE AND OTHERS

JUDGEMENT

(1.) This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 9/9/2017 passed by the Second Additional District Judge, Karera, District Shvipuri in Civil Appeal No.82-A/2017, by which the appeal filed by the appellants was dismissed as barred by limitation.

(2.) The necessary facts for disposal of the present appeal in short are that the appellants had filed a suit for declaration of title and permanent injunction. The said suit was dismissed by the trial court by judgment and decree dated 29/1/2013 passed in Civil suit No.117-A/2012. The appellants filed first appeal under Section 96 of CPC on 4/4/2014 alongwith an application under Section 5 of the Indian Limitation Act. The said application was dismissed by the appellate court and consequently, the appeal has also been dismissed as barred by limitation.

(3.) It is submitted by the counsel for the appellants that before deciding the question of limitation, it was the duty of the appellate court to consider the facts of the case and it should not have dismissed the application filed under Section 5 of the Indian Limitation Act and thus, the order passed by the appellate court, by which the application filed under Section 5 of the Indian Limitation Act has been rejected, is bad. To buttress his contentions, the counsel for the appellants has relied upon the judgments passed by the Supreme Court in the cases of Vinod Kumar Vs. Gangadhar reported in, 2015 1 SCC 391, Madina Begum and Another Vs. Shiv Murti Prasad Pandey and others reported in, 2016 15 SCC 322 and C. Venkata Swamy Vs. H.N. Shivanna (Dead) By Legal Representative and Another reported in, 2018 1 SCC 604.