^' ^' HI©HCOIJRT OF CHH^.TTIS^RH AT BIL^SPUR Second ADpeal No. 294 of 2009 ^) w 'l^ SB ; h'on'bie Mr. T.P. Sharma. J. :^' ^ Ap9llccsnts ' .. i. ThaneshwQr Son of Shri Heerate! aged 24 years ViiJage-Laphinkhurd, 2. Smt.&evakibai aged.; 25 y^ars Kheiaww yadav (D/o Uate Heeraial) viijage Magheve, [' P.O.Mageva Tah »Mahasamund< 3. Smt.PuspoBai aged 2'2 years W/o Beersingh yadav (Daughter of Heeralai) : Res.vj!!age: Khapripdra P«O.BnsJn, Sub Jah. Phingeshwer Tah. < Railm District-ftGlpur. 4. j<ul<a!ita (Mlnor) ag^d 12: years Daughter Late Shri HeerGiaJ Yadav resident of viilage l-aphikhurd. ©uordianMother Anusuiabdi widow of iate HeeraJai. 5, Ku.Khymlnbas age.d 9 years Daughter Late Heeraial Yadav, ftes,viiiage Laphjnkhurd. (Suardian Mother Anu^uia! widow of Heeralal. 6. l&j-Topinbal aged 7 years &oughter Ute' HeemiaS Vadav resident -of village Laphinkhurd. ; Z Smt.Anusaibad aged 46 years apprax widow of Heeraiai yadav, Res,Viilage uxphinkhurd. Versys 1. Smt.Eshbati, W/o Nandlo! Yctday, aged 09001 62 years, R/o VillaQe: Uffin XHurd, Tahsil : Mahasamund, blstt.: Mahasamund/ Chhattisgarh 2. Stote of ^ Chhattisgarh throygh Coiiector, Mahasamund (Chhattisgarh) (SECOND APPEAL UNGER -SECTTON 100 OF TME CODE OF CIVIL PROCEDURE, 1908) R®ssond®rits Pldntiffs (S) Present : AAr< Sanjay S-Agrawsl, counsei for the appljcctnts. Mr.Sudeep Agrawaj, counsei aDpears on behalf of Mr<Sanjay K.Agrawai, counsej for respondentNo,!. Miss .Sangeeta Mishra, Panel iawyer for respondent No.2/State. JudQme-rtt (Passed on 13th April, 2010) 1. By this appeal, the appeilants have chaitenged ttie iegality &. proprlet/ of the judgmsnt/ordsr datsd 18.12.2001 passsd by ths 2nd AcJditionai District Judge, Mahasamund m Civjl Appea! No .19-A/2001. 2. Learned counsel for the appellants sybmtts that. the appea! 'fl!ed on behalf of the appe!!ants was dlsmissed only on. the .ground that it was flted after 36 doys of jtstimitation and no reasonable explanation was offered and that is on!y subst^nttel question of icw for disposa! of this oppeal. 3. From perusa! of the records of the Courts bebw, it oppears that the Qppeo! was dlsmissed only on the ground of llmitation that too, barred by 36 days. The oppeai 1s admitted on the followlng substantb! question of !aw:- "Vl/hether the lower appellate Court has commltted iSJegdity by dismissing the appea! on the ground of limitation that too, deioy of only 36 days?" 4. Brief facts necessary for disposa! of this appea! are that sujt fiied on behoif of the appejiants was dismissed by the Second CivjJ Jud9e Ciass- I, AAahosamund yide jucigment and decree doted 28.4-2001 m Civil Sult No.44^/2000. &tms ms chQiiengsd bsfors ths 2nd Additjona! &i3trjct Judge, Mahasamund in First AppeaJ under Section 96 of the Code of Civii Procedure- Same was dismissed by the order/judgment and decree on the. ground that 1^e appeai has been preferred after 3.6 days o'f its |&ux|«aaaaFu3ix"'p^"sxi-<C{;CG^a*a=^C? . "CCGi nx "11 na =axL8CGCGLSQX aG n II "a^e1- n-ff .^ llmjtation and the appeilant has not satisfactority explained deiay m fjjingtheappeal 5» I have heord learned counse! for the parties, perused the Judgment Impugned dnd records of the Courts below. ^- .. - . . • . . .' ' ' , • .: , 6» Learned counse! for theappellants ^ibmits thatthe appe!iant ^xs ill and finally he died. The appe!!ant has filed document retotjng to his treatment and has explained the del<3y jn fi!ing the appeal, but the Court be!ow has not considered the same and dismissed the appea!. 7. On the other hand; l<Mrned counse! for respondentNol supported the judgment impugned and submlts that although the Court is required to take llbera! view in considering the question of dejay and expSanatlon offered on behaif of the parties, but parties are under obligation to exptein the delay of each doy by adducing cogent evidence, but In the present case, the appe!!ant has failed to adduce any cogent evidlence to expldn the delay in filing the appeaL 8. From perusal of the records of the Courts bebw, it appears that jov^r oppe!late Court has dismissed the appeo on the ground of delay of 36 days in fjling the appeal. It olso appears that before dismissing the Gppeal learned Sower appellate Court has examined the witnesses of both the par'ties- The appei'ant has filed document of treatment. The porties are under obligotion to expiain the delay of each day by odducing cogent evidence, but the Courts are required to l^ke iibera! viewin acceptjng the exptenQtion offered on behQif of the partles to decide the case on merits and to provide opportunity of hearlnQ to the partje.s to conte-st the c-ase on merits. . 9. In the present case, th.e.oppeal was dlsmissed only on the ground of deby of 36 days. Both the partjes haye odduced their evidence re'oting to expbnation of de!oy in filjng the appeal In these circumstances, the lower appe!|ate Court was required to take liberai/constructive c^pro^h wj^ •^e^its;:to:.the::partjes.;''^ '..:i,^:'.^ t0<ln this case, tearned lowsr^^^^^e^ e^^e^Q^ \^^^^^^^ 1+ie parties sh^^^^^ disrriiss'ng fheappeatrt 11. Conseqy^htly, & isdeciiedasposit^ t2.F^r th^^^ impugr^ is hsr^by set asid©.^^^^^^T^ Additiona! bistrict Jud Qf1%r proyiding bppo dlrectsd to remain present befoi^ ths 2nd Additiw^ Mahasamun^o shall i^ar 1^emo •\.i''•'i\'^ ^ . ! .:'••-••'11:-';.;1'''::.•.•....•'•.•';''•.''-'^ ,;;'—^ .•' . :',1.;.—-' ;•' • ••• IS.Advocatefeedsper^^s^ 14,Decreebedr<wnupaccordi^^^^^ Sd/- T.P. Sharma Judge