Anuj Kumar & Others vs Bharat Singh & Others

Manoj Kumar Tiwari, J

Petitioners are aggrieved by the order dated 02.03.2021 passed by in-charge District Judge, Udham Singh Nagar, whereby Misc. Appeal filed by

the petitioner under Order 43 Rule 1(r) C.P.C. has been dismissed on the ground of delay.

Mr. K.N. Joshi, learned counsel appearing for the petitioners contends that the order, against which appeal under Order 43 Rule 1(r) was filed, was

passed on 30.01.2021 and petitioners had applied for certified copy of the said order the same day, however, copy of the said order was pasted on the

notice board on 02.02.2021. He further submits that appeal was filed by petitioners on 02.03.2021 i.e. within 30 days from the date of pasting of

certified copy of the order on the notice board of Court concerned, therefore, the Appellate Court erred in dismissing the appeal on the ground of

delay.

Mohd. Azim, learned counsel appearing for respondents (defendants in the suit) has not disputed the submission made by learned counsel for the

petitioners that the appeal was filed on 02.03.2021, while, certified copy of the order was pasted on the notice board of trial Court on 02.02.2021. He

further concedes that from the date of pasting of the order on the notice board, till filing of appeal, period of 30 days had not expired.

The Schedule of the Limitation Act, 1963 reads as under:

“116(b) to any other court Thirty days The date of from any decree or order the decree or orderâ€​

From the aforesaid entry in the Schedule of the Limitation Act, 1963, it is apparent that period of limitation for filing appeal in the present case was

thirty days.

In such view of the matter, impugned order dated 02.03.2021 is set-aside and the writ petition is allowed. The matter is remanded back to learned

District Judge, Udham Singh Nagar to pass order afresh, in accordance with law, after hearing all the stakeholders.

For a period of two weeks’ or till disposal of petitioner’s stay application in pending Misc. Civil Appeal, whichever is earlier, parties shall

maintain status quo.