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Judgment
[1] Heard Mr. D. R. Chowdhury, learned senior counsel assisted by Mr. S. Sarkar, learned counsel appearing for the appellant. Also heard Mr. Raju Datta, learned counsel appearing for the respondents.
[2] This second appeal arises out of the judgment and decree dated 12.09.2018 in case No. Civil Misc (Condonation) 09 of 2018 passed by the learned District Judge, District Unokoti, Tripura, Kailashahar, rejecting the petition for condonation of delay in preferring the appeal vide No. T.A. 10 of 2018 and dismissing the appeal preferred against the judgment and decree of dismissal dated 24.10.2017 by the learned Civil Judge, Jr. Division, Kailashahar in case No. T.S. 40 of 2005.
[3] Briefly stated, the appellant, who was the original plaintiff of the suit, instituted a suit for declaration of title, perpetual injunction and recovery of khas possession. The defendants appeared and contested the suit by filing written statement. Evidences were recorded and after perusal of the evidence and having heard and considering the submissions of the learned counsel appearing for the parties, the learned trial Court dismissed the suit of the plaintiff. The plaintiff being aggrieved, preferred a first appeal under Section-96 of the Code of Civil Procedure, 1908. Along with the memo of appeal, the plaintiff also filed an application for condoning the delay of 164 days.
[4] The learned First Appellate Court at the time of hearing of the condonation application held that the plaintiff had failed to assign sufficient and acceptable explanation to condone the delay of 164 days and accordingly, dismissed the application for condonation of delay; consequently, the first appeal also dismissed. Hence this second appeal.
[5] Mr. Chowdhury, learned senior counsel appearing for the appellant has submitted that there was sufficient explanation as to why the first appeal could not be preferred in time.
[6] On the other hand, Mr. Datta, learned counsel appearing for the respondents placing reliance upon some decisions of the Apex Court as well as High Court submits that the Court cannot condone the delay on sympathetic consideration.
[7] I have heard the learned counsel appearing for the parties. True it is, that a party having aggrieved of any order or judgment passed by any Court may challenge the decree before a superior Court. If in filing an appeal, a delay is caused, then, he has to file an application for condontion of delay under Section-5 of the Limitation Act. It is settled that Section-5 of the Limitation Act is to be construed liberally and Court should not be hyper technical in considering the petition for condonation of delay in the interest of justice. Ultimately, it is the duty of the Court to render equitable justice to the parties. If an appeal is heard on merit, then, none of the parties will be prejudiced.
[7] Keeping in mind the aforesaid principle, in my opinion, the learned First Appellate Court has committed an error of law in dismissing the application for condonation of delay wherein, the appellant has sought for only 164 days. In my opinion, the delay of 164 days should be condoned. Accordingly, it is condoned.
[8] In the result, the instant second appeal stands allowed and disposed. Send down the LCRs to the First Appellate Court and the learned Court having received of the records would ask the parties to appear before the Court in accordance with law. Parties are directed to appear before the court on 12th May, 2021. The learned counsel appearing for the parties are accordingly notified and they also have stated before the Court that they would appear before the learned First Appellate Court on the date as fixed by this Court i.e. on 12.05.2021.