(V ^ ,v: ^) HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. 173/2010 SUvester Lakra, S/o Shri Fraasis Lakra, aged about 45 years, Occupation-Service, R/o Rainbhaatha, Raigarh (C.G.). APPELLANT [PLAINTIFF] VERSU8 RE8PONDENT [DEFENDANT] Vijay Kuiaar, S/o Shri Ganesh Rain, aged about 40 years, Occupation Service, R/o Sadar Bazar, Raigarh, Tehsil & District-RaJ^arh (C.G.). SBCOND APPEAL UNDBR 8BCTION 100 OF THB CODB OF CIVIL PROCEDURE. 1908. (SB :Hoa»bleMr. T.P.Sfaarma, J.) Present:- Shri H.8. Patel, Advocate for the appellant. None for the respondenfc, although sen/red 8& previously represented. JUDGEMBNT (Passed oia 09/12/2011) 1, By fhis second appeal under Section 100 of fhe CivU Procedure Code, 1908 appeUaat has chaUenged fhe legaMty aiid propriety of tiie order dated 21/4/10 passed by 3rd Additional Distdct Judge, (F.T.C.) Ralgarh C.G,(also nientioued as 4th Additional District Judge P.T,C,) in unregistered civU appeal (Silvester Lakda v. Vijay Kuinar) whereby first appeal filed against order dated 14/9/06 passed by First Civil Judge Class-2, Raigarh ia civU suit No. 252A/06 whereby First Civil Judge Class-2, Raigarh has disinissed tlie suit as not ixiaiatauiable ia terms of Section 11 of fhe CivU Proeedure Code, 1908 (ia short <ftie Code7) Lower Appellate Court has dismissed the appeal on fhe ground ofliiaitation, 2, Present second appeal has been admitted for consideration on the following substaatial questions oflaw:- ^Whether the finding of the lower appellate Court thai delay has not been explained in filing the appeal is perverse?". 3. Shri H.S. Patel, Advocate for fhe appellaat is heard, 4. Order iinpugned aad record of tiie Court below perused, Order iiapugned aiid record of t3ie Court below reveal ftiat present 7.^3^,^^. \.^J../ ^tr^^&'' 5. appellant has filed appUcation tbr condonation of delay in filiag appeal on fhe ground ttiat it was not ioformLed by his counsel. Appellaat has filed affidavit ia support of his contention but has not filed aay affidavit of the conceraed Advocate. Appellaat has filed appeal before Lower AppeUate Court on 26/6/08 after lapse of about 1 year aad 9 monfhs defmitely, appeal was preferred after lapse of considerable tmie and appellant was under obUgation to explafcti delay ia filiag such appeal but Court below was reqrdred to take Uberal approach ia consideriiig such explaiiation especiaUy facts that whefher it was possible for appeUaat to obtain affidavit froni fhe advocate relating to negative facts and the facts which would have been non efhical to the counsel. Consideruig the aforesaid facts aad claim of appeUaat appeal ought to have been decided on inerits after condoning delay but by not condoniag delay aad disiaissing appeal on ttie grouad of liriiitation Lower AppeUate Court has committed aa iUegality. Consequentiy, substaatial question of law formiilated for decision of fhis second appeal is decided as positive. On fhe basis of decision on substantial qiiestion of law, second appeal is aUlowed, Order iaipugned passed by Lower Appellate Court is hereby set-aside. Case is reiaaaded back to the Lower AppeUate Court for providiag opportunity of hearing to fhe parties aad decidnig case afresh on merits after allowmg appUcation for condonation of delay ia filmg appeal. AppeUaat shatl appear before fhe Lower AppeUate Court on 17/1/2012 aad Lower AppeUate Coiu*t shaU after issuiag notice to fhe respondents decide fhe appeal, No order as to costs. Sd/- T.P. Sharma Judge ^