KHORSED ALI Vs. JALKADAR

JUDGEMENT

(1.) This Second Appeal is by the defendant and is directed against the judgment and decree dated 10.1.1997 passed by the learned Civil Judge (Senior Division) Barpeta in Title Appeal No. 23 of 1994. By the aforesaid judgment and decree dated 10.1.97, the learned Lower Appellate Court has dismissed the defendant's appeal against the judgment decreeing the plaintiffs' suit passed by the learned trial Court. It may be noticed at this stage that the dismissal of the defendant's appeal by the learned lower Appellate Court is on the sole ground that the appeal filed by the defendant was barred by limitation.

(2.) By order dated 18.6.1997 while admitting this Second Appeal this Court had framed the following substantial question of law for adjudication.

(3.) The suit of the plaintiff was for declaration of his right, title, interest and possession in respect of the suit land mentioned in the schedule to the plaint and for permanent injunction. The suit of the plaintiff was decreed by the learned trial Court on 22.8.94. Against the aforesaid judgment and decree passed by the learned trial Court, the present appellant i.e. the defendant in the suit instituted Title Appeal No. 23/1994 in the Court of the learned Civil Judge (Senior Division), Barpeta. The appeal of the defendant was filed on 7.11.94, on which date according to the defendant, the Court had reopened after the long vacation for the calendar year 1994. The appeal was admitted by the learned lower Appellate Court to regular hearing. However, at the hearing of the appeal it was pointed out by the respondent in the appeal (plaintiff in the suit) that the appeal was barred by time inasmuch as the Courts had reopened after the long vacation of the year 1994 on 4.11.94 and not on 7.11.94. The defendant/appellant contested the plea of limitation by contending that as the appeal had been admitted to regular hearing, no such plea can be advanced. It will be important to note at this stage that the defendant/appellant neither filed any application for condonation of the delay nor had sought leave of the learned lower Appellate Court to file any such application for condonation. The learned Lower Appellate Court taking note of a decision of this Court in the case of Meghalaya State Electricity Board, Shillong Vs. Shri Ambunath Choudhury & Ors., reported in (1993) 2 GLJ208 took the view that, notwithstanding the admission of the appeal, it was open to the respondent in the appeal to raise the question of limitation and as the appeal filed by the defendant/appellant was barred by time and no application for condonation of the delay was on record, the appeal merited dismissal. Accordingly, the judgment and decree dated 10.1.1997 was passed dismissing the defendant's appeal and affirming the judgment and decree dated 22.8.1994 passed by the learned trial Court.