Shantha & Ors vs C.R. Suresh & Ors.

H.P. Sandesh, J

This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for respondent Nos.1 and 2.

This appeal is filed against the order of dismissal of I.A.No.1, wherein there was a delay of 40 days in filing the appeal and consequently dismissing the appeal. The First Appellate Court dismissed the application on the ground that though it is stated that appellant No.1 was suffering from left chest wall injury and left knee medical collateral ligament injury, the said ailment is not mentioned in the I.A., which has been filed for condonation of delay also not examined herself before the Court and not shown any sufficient reasons.

The learned counsel for the appellants would contend that the delay is only 40 days and reasons are also given and the First Appellate Court ought to have taken note of the same in a lenient way and the same is not considered and the order is too technical.

The counsel for respondent Nos.1 and 2 would contend that appellant No.1 though stated that she was suffering from ill-health, not entered into the witness box to show the sufficient cause and hence the First Appellate Court rightly dismissed the same.

Having heard the learned counsel for the appellants and the learned counsel for respondent Nos.1 and 2 and having taken note of the reasoning assigned by the First Appellate Court, the First Appellate Court should not be too technical while considering the regular appeal i.e., a statutory appeal for consideration of the impugned order of the Trial Court and the delay is only 40 days and even reasons are stated that appellant No.1 was suffering from ill health and with regard to 40 days delay, ought not to have expected the medical records, but produced and the same is not considered. Having considered the judgment of the First Appellate Court, an observation is made that medical certificate is available on record, but not examined herself before the Court. While considering the delay of 40 days, the First Appellate Court ought to have taken note of the substantive rights of the parties and not on technicalities and ought to have met the substantial justice and not dismissing the application on technical ground. Hence, the impugned judgment is liable to be set aside and the matter is required to be considered on merits.

In view of the discussions made above, I pass the following:

ORDER

(i) The appeal is allowed.

(ii) The impugned order passed by the First Appellate Court on I.A.No.1 is set aside. Consequently, I.A.No.1 filed before the First Appellate Court is allowed.

(iii) The matter is remitted back to the First Appellate Court to consider the appeal on merits.

(iv) The parties are directed to appear before the First Appellate Court on 04.08.2025, without expecting any notice from the First Appellate Court.

(v) The suit was filed in the year 2013 and the appeal is of the year 2022 and almost the parties have approached the Court one decade ago and hence it is appropriate to direct the First Appellate Court to dispose of the matter in accordance with law by giving an opportunity to both the parties and consider the same on merits within a time bound period of six months from 04.08.2025.

(vi) The Registry is directed to communicate this order to the First Appellate Court, forthwith.