RSA 37/2001 BEFORE THE HON’BLE MR. JUSTICE P.K. MUSAHARY Heard Mr. A.C. Sharma, learned counsel for the appellant. None appears for the respondents although due notice was served upon them and th e names of the learned counsel for the respondents have been reflected in the ca use list. The matter is heard ex-parte. 2. This appeal has been filed against the order dated 17.2.2001 passed by t he learned Lower Appellate Court rejecting the petition for condonation of delay filed by them in filing the appeal against the judgment and order dated 11.1.19 99 passed by the learned Trial Court, Civil Judge (Jr. Divn.) No. 2, Dhubri in T itle Suit No. 141/1990 on the ground that the present appellant failed to show s ufficient cause for delay in filing the appeal before the lower Appellate Court. 3. In the Title Suit No. 141/90 the present appellants are the defendants. The said suit having been decreed on 11.1.99 by the learned Trial Court, an app eal was filed by the present appellants/ defendants against the aforesaid decree but there was a delay of 27 days for which an application was filed for condoni ng the said delay. In the meantime, the learned Lower Appellate Court by the imp ugned order dated 17.2.2001 rejected the prayer for condonation of delay and con sequently no appeal was entertained. Hence, the present second appeal before thi s Court has been filed by the present appellants/ defendants. 4. Mr. Sharma, learned counsel for the appellant submits that the delay in question was explained properly and satisfactorily before the learned Lower Appe llate Court. The ground taken for condonation of the delay in question have been reflected in para 11 and 12 of the judgment and order dated 17.2.2001 passed by the learned Civil Judge (Sr. Division), Dhubri which is quoted below :- 11. A perusal of the case record shows that the appellant ought to have filed t he appeal within 10.2.99 as the learned trial court passed the impugned judgment and decree on 11.1.99, that the appellant petitioner applied for the certified copy of the impugned judgment and decree on 18.2.99 that the estimate of requisi te stamps and folios was made and the petitioner deposited the requisite stamps and folios on 10.3.99 and that the copy was ready and taken delivery by the peti tioner on 12.3.99. As such, the appellants are entitled to exemption, for obtain ing copy of 23 days from 18.2.99 to 12.3.99 from, the period of limitation in fi ling the appeal as per the provisions of Sec. 12 of the Limitation Act, 1963. Th e Limitation period is 30 days from the date sof the judgment and decree in fili ng an appeal. Accordingly, even after exemption of 23 days for obtaining copy, t he appellants had to file the appeal within 4.3.99 by the appellants filed the a ppeal on 31.3.99 after delay of 27 days 12. The petition for condonation of delay states that after death of defenda nt No. 1 Dhirendra Nath Mazumdar, the appellant/ petitioner Sri Durga Charan Maz umdar was entrusted by other appellants to look after the case and he was conduc ting the case diligently. But his mother Sumitra Mazumdar suddenly died on 05.12 .98 and he had to remain with his brothers in their house during the mourning pe riod of one month during which period he became ill and remained under medical t reatment up to 16.2.99. Thereafter, he came to Dhubri on 16.2.99 and could know that the suit had already been decreed on 11.1.99 and immediately applied for th e certified copies of the judgment and decree which was delivered to him on 12.3 .99. No document has been produced to show that the appellant/ petitioner was su ffering from ailments up to 16.2.99. That apart, thought, the copy of the impugn ed judgment and decree was delivered to the petitioner on 12.3.99, the appeal ha d been filed on 13.3.99. Cause of delay in filing the appeal for the period from 12.3.99 to 31.3.99 has snot at all been shown in the petition for condonation o f delay. The appellant/ petitioner has therefore, failed to show sufficient caus e for delay in filing the appeal and aw such the said petition is liable to be r ejected. Accordingly, the appeal is barred by limitation and it need not be gone into the merit of the appeal. 5. The actual delay according to Mr. Sharma is only 17 days. Even acceptin g but not admitting that there was a delay in filing the appeal, the said delay ought to have been condoned to do substantial justice to the appellant. In this regard he has placed the decision reported in (1998) 7 SCC 123 (N. Balakrishnan Vs. M. Krishnamurthy) wherein the Hon’ble Apex Court has laid down the guidelin es for condonation of delay. According to the aforesaid guidelines while conside ring the case for condonation of delay, Court has to give liberal construction so as to advance substantial justice and it should take note that if the explana tion does not smack of mala fides and it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suit or. But when there is reasonable ground to think that the delay was occasioned b y the party deliberately to gain time, then the court should lean against accept ance of the explanation. 6. I have considered the submission advanced by the learned counsel for the appellants along with the averments made in the application No. 1003 da ted 31.3.91 filed by the appellant before the learned Civil Judge before the Co urt of learned Civil Judge (Sr. Divn.), Dhubri. In the said petition it has been contended that the mother of the petitioner Sumitra Mazumdar unfortunately died on 5.12.1998 and all the appellants had to remain in the house for one month du ring the mourning period and they could not come to Dhubri. Even one of the peti tioners who has been taking steps was suffering from illness and was under treat ment up to 16.2.99. It may be noted that the present appellants being the defend ants in the Title suit are judgment debtors and therefore they would not take th e risk of taking the dilatory tactics and rather they would try to get the exped itious relief from the appellate court by filing the appeal against the decree. Under such circumstances it would not be proper to take a view that the appellan ts had been taking dilatory tactics in filing the appeal before the lower appell ate court. 7. In my considered view the matter of condonation of delay should be taken up afresh by the learned lower appellate court in the light of the guid elines and rulings of the learned Apex Court to render substantial justice to th e parties. . 8. In view of the above, the impugned judgment and decree dated 17.02.2001 passed in Title Appeal No. 7 of 1999 rendered by the learned Civil Judge (Sr.Div n.), Dhubri is liable to be set aside and accordingly the same is set aside and quashed. 9. The matter is remanded back to the learned Civil Judge (Sr. Divn.), Dhub ri for fresh consideration and taking a fresh decision in regard to condonation of delay in question within a period of 30 (thirty) days from the date of receip t of the LCR. Needless to say that the parties concerned may be given due notice and opportunity of hearing. It is also needless to say that the learned Civil J udge (Sr. Divn.) shall re-consider and pass necessary order without being influe nced by the observations made by this Court. 10. The appeal stands allowed and remanded. No costs. 11. Sent back the LCR forthwith.