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Judgment
A.V. Chandrashekara, J.—This is an appeal filed by the defendants of O.S. No. 206 of 2000 being aggrieved by the concurrent judgments passed in O.S. No. 206 of 2000 and R.A. No. 87 of 2003. Parties will be referred to as plaintiffs and defendants as per their ranking given in the Trial Court. Plaintiffs had filed a suit for the relief of declaration and possession against the defendants in respect of a house property as described in the schedule appended to the plaint. The said suit was contested by the defendants and ultimately suit was decreed on 9-12-2002. Against the said judgment and decree, an appeal came to be filed u/s 96 of Civil Procedure Code, 1908 before the II Additional Civil Judge (Senior Division), Dharwad in R.A. No. 87 of 2003.
Several grounds had been raised in the appeal. There was no delay in filing the appeal by the defendants. Inspite of that, the learned Judge of the First Appellate Court has chosen to dismiss the appeal as time barred on 26-11-2007. Looking to the grounds raised in this appeal memo, the following substantial question of law is framed by this Court on 10-1-2014:
"Whether the lower Appellate Court has committed a grave error in dismissing the appeal on the ground of limitation without properly excluding the days taken by the Court in preparing the certified copy and thereby the judgment of the First Appellate Court is perverse and capricious?"
Learned Counsel for the appellant is present and has advanced his arguments. Counsel for respondents is absent.
The judgment of the Trial Court is dated 9-12-2002. An application was filed on 10-12-2002 seeking certified copy of the judgment. Applicant was required to appear on 2-3-2003 to obtain the certified copy but the applicant appeared on 3-3-2003. Copy was ready on 28-2-2003. Copy was delivered on 3-3-2003. Appeal was filed on 26-3-2003. Learned Judge of the First Appellate Court has not at all taken into account the time taken by the office to prepare the copy from 10-12-2002 to 2-3-2003. The period from 10-12-2002 upto 2-3-2003 should have been excluded. Instead of excluding the said time taken for preparing the copy by the office, the learned Judge has come to the conclusion that the appeal was filed belatedly. The very approach adopted by the First Appellate Court is erroneous on the face of the order. It is unfortunate that neither the office has raised any objection regarding delay nor the other side has raised any objection in regard to the delay.
It appears that the First Appellate Court has looked into the copying register of the Trial Court in regard to the supply of the certified copy. No opportunity was given to the appellant''s Counsel to make submission in this regard. Thus a fair opportunity of making a representation in regard to the alleged delay was denied. The Court should have acted on the basis of the dates mentioned in the seal affixed to the judgment of the Trial Court which was the subject-matter before the First Appellate Court.
In fact, an application had been filed u/s 5 of the Limitation Act, 1963 seeking condonation of delay, if any, in filing the appeal supported by an affidavit sworn to by the first appellant. Inspite of filing objections to the said application, no opportunity was given to the appellant to adduce evidence to the limited extent of showing sufficient cause for condonation of delay.
Even otherwise, the delay must be liberally construed, is the dictum of the Hon''ble Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, . There should not be a pedantic approach towards condonation of delay. Hence the very approach adopted by the lower Appellate Court is erroneous and perverse. Hence the substantial question of law is answered in the affirmative. Consequently, the appeal has to be allowed:
ORDER
Appeal is allowed holding that there was no delay in filing the regular appeal before the First Appellate Court. The matter is remitted to the First Appellate Court for disposal of the same in accordance with law within a period of 6 months from the date of receipt of the LCRs and copy of the judgment.
Parties shall appear before the First Appellate Court on 5-4-2014 without fail.