Kamal Dev vs Mani Ram and Others

Surjit Singh, J.—Heard and gone through the record.

Appellant-defendant filed an appeal before the District Judge, against the judgment and decree of the learned trial Court, dated 11.6.1996. Appeal was filed on 30.10.1996. In the Memorandum of Appeal, it was stated that after deducting time spent on procuring certified copies of judgment and decree, appeal was within time. Learned first appellate Court found that application for supply of copies was moved on 12.6.1996, copies were ready for delivery on 22.7.1996, but the appellant-defendant took the delivery of the same on 18.10.1996, and offered no explanation for delay in taking delivery of copies. Consequently, appeal has been dismissed, as time barred. Oral request made by the appellant-defendant for condoning the delay, was turned down, with the finding that sufficient cause had not been shown.

This appeal was admitted on the following substantial question of law:

Whether the appeal preferred by the appellant before the first appellate court was within time? If not, whether the learned first appellate court has rightly not condoned the delay?

I have heard the learned Counsel for the parties.

As a matter of fact, when a party seeks indulgence of the Court in the matter of condonation of delay, it should ordinarily be afforded an opportunity to prove that there was sufficient cause for the delay. In the present case, no such opportunity had been afforded.

In view of the above stated position, appeal is accepted, impugned judgment is set aside and the matter is remanded to the learned first appellate Court, with a direction that an opportunity shall be afforded to the appellant-defendant to make an application u/s 5 of the Limitation Act and such application shall be disposed of in accordance with law, and in case the delay is condoned, the matter shall be heard and disposed of on merits.

Parties are directed to appear before the first appellate Court on 17.8.2010. Appellant defendant shall be afforded only one opportunity, of not longer than two weeks time, to make an application u/s 5 of the Limitation Act.