KAILASH CHANDRA NANDA Vs. JOGENDRA DAS

JUDGEMENT

(1.) INSPITE of notice, there is no appearance on behalf of opposite party in the present Civil Revision which is directed against the order dated 7.8.1998 where under the lower appellate Court refused to condone delay in filing Title Appeal No. 5/98. The said appeal had been filed by the plaintiff as the suit had been dismissed. It appears that there was delay of 68 days in filing the said title appeal. The present petitioner filed a petition for condonation of delay stating that he could not take steps for filing the appeal in time as he had gone to Tata on 20.9,1997 to see his daughter.The learned District Judge has rejected the aforesaid petition on the ground that going to Tata was not a legal necessity and the appellant had gone at his own risk and stayed there for a long time without any just cause The said order is under challenge in the present Civil Revision.

(2.) THE lower appellate court has not disbelieved the assertion that the appellant had gone to Tata on 20,9.1997 to see his daughter and returned to Bhubaneswar on 15.1.1998. THE question of finding out "legal necessity" for going to a place does not arise in the matter relating to consideration of limitation. THE Court has to find out whether there was sufficient cause for not filing the appeal within the prescribed period. Going to see a daughter at a distant place is not unusual. Since the petitioner had gone to Tata before the judg- ment was delivered in the suit, it cannot be said that he had deliberately refrained from filing appeal in time in spite of knowing about the dismissal of the suit. Be that as it may, in such matters, unless it is found that the appellant had deliberately delayed in filing the appeal to gain some advantage, the question of condonation of delay is to be considered liberally to advance the cause of substantial justice. Having regard to the facts and circumstances of the case and the further fact that there is no opposition from the opposite party, I consider that this is a fit case where the impugned order should be set aside and the delay in filing appeal before the lower appellate Court should be condoned. Accordingly, the Civil Revision is allowed. THE delay in filing Title Appeal No. 5 of 1998 is condoned. THEre will be no order as to costs. Revision allowed.