a ^) •?!R ^'^ IN THE mOH COUR TOF JUDICATURE AT BILASPUR CHHATTISGARH 81NGLEBENCH Second Appeal No.^33__of2005 i Appellants: ^efendants f7M y^/r/ ^ \\^/ / 1, The Divisional Forest Officer, •^' Territorial Foresf Division, Dhamtari District Dhamtari (CQ) 2,. TheConservatorofForests wy /'^y 7 Raipur Circle Raipur (CG) 3. State ofChhattisgarh, ^ Through Collector, Dhamtari (CG) Versus Bhisamlal Sahu, S/o Shri YaduRam Sahu, aged about 32 years, R/o yillage Gatapar, PostKorra, Tahsil Kur^id, District Dhamtari (CG) 'w SECQND APPEAL UNDER SECTION 100 OF THB ClODE OP jy;/ f//' [ Respondent: J/t>laintiff. CIVIL PRQCEDURE HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.239 of 2005 APPELLANTS: ^ Defendants RESPONDENT: Plaintiff i -Versus- The Divisional Forest Officer and others Bhisamlal Sahu Present Shri G.D. Waswani, Govt. Advocate for the appellants. Shri N.S. Dhurandhar, counsel forthe respondent. Sinale Bench: Hon'ble Shri Prashant Kumar Mishra, J. ORAL ORDER (11-5-2011) 1. Heard this appeal finally with the consent of learned counsel for the parties. 2. By the impugned judgment and decree, the 1st Appellate Court has dismissed the appeal preferred by the appellants as a consequence of rejection of their application under Section 5 of the Limitatjon Act, 1963 (henceforth (the Act, 1963'), as the first appeal was barred by 2 months and 17 days and according to learned 1 Appellate Court, the appellants herein failed to explain the delay in prefemng appeal. 3. Facts of the case, briefly stated, are that the respondent preferred a suit for declaration and permanent injunction to the effect that the plaintiff is entitled to get a licence and operate saw mill at village Gatapar and further command the respondents (appellants herein) by issuance of mandatory injunction to grant a licence to the plaintiff under the provisions of M.P. Kashtha Chiran (Viniyaman) Adhiniyam, 1984 (for short 'the Act, 1984'), to operate sawmill. 4. According to the plaintiff, one saw milt in the name of Shri Ram Saw Mill was established by one Ishwari, son of Kartik Sahu, at village Bhothali, District Dhamtari, which was purchased by the plaintiff on 13-12-1999 and thereafter, the plaintiff started operating the said saw mitl after getting it shifted to village ^Gatapar. It was further pleaded that on the ground that no permission for ^^X^^x' ..e...:.-..-^) | ^'" ..yj (S) ^NNIUWW^ changing the site was obtained from the concerned authorities under the Act, 1984, the plaintiff was imposed a penalty of Rs.1,000/- and was furi:her instructed not to operate the saw mill at village Bhothali. The plaintiff thereafter applied for grant of fresh licence at village Gatapar, however, in spite of receiving the renewal fee for the old licence, his prayer for new licence remained undecided. According to the plaintiff, application for fresh licence is deemed to have been allowed byvirtue of provisions contained in Section 4 ofthe Act, 1984 and, therefore, a decree in his favour in terms prayed for should be granted. 5. The respondents (appellants herein) defended the suit by submitting that the plaintiff has illegally operated the saw mill at village Gatapar without seeking permission for changing site. Byraising additional pleadings, it was stated that prayer for mutation/change of name was allowed for the saw mill situated at village Bhothali and there are instructions by the Principal, Chief Conservator of Forest that permission to sell and change of site can be allowed only in such cases where saw mill is to be operated on the same place where it is established. It was also stated that since the plaintiff continued to operate the saw mill at village Bhothali in an illegal manner, forest offence No. 1136/25 dated 9-4-2001 was registered against him and a fine of Rs.1,000/- was imposed on the plaintiff. It was also stated that grant of fresh licence has been prohibited, therefore, the ptaintiff's application has remained pending. Even otherwise, as long as the plaintiff has moved application and paid fee for renewal of old licence, fresh licence for the same saw mill with regard to which renewed licence is existing, cannot be granted. 6. The trial Court, decreed the suit by its judgment and decree dated 22nd March, 2004 against which the appellants preferred an appeal under Section 96 of the CPC before the Couri: below. The appeal was barred by limitation, therefore, an application for condonation of delay of 2 months and 17 days was moved before "^ the 1stAppellateCourt. 1 ^ :^.....,..^fv^\ . II ^£':.A. •y'./' ^ 7. Learned 1st Appellate Court has dismissed the appeal after finding that the appellants have failed to explain the delay of 2 months and 17 days properly. 8. This appeal has been admitted by this Court by framing following substantial question of law:- "Whether the first appellate court was justified in rejecting the application for condonation of delay filed by the appellant and consequently dismissing the appeal?" 9. Learned counsel for the appellants argued thaf 1st Appellate Court has taken a very strict and hyper technical approach while dealing with the application under Section 5 of the Limitation Act. He would submit that delay in filing first appeal has been explained properly and the 1 Appellate Court should have allowed the application and should have heard the appeal on merits. 10.0n the other hand, learned counsel for the respondent would argue that 1st Appellate Court has considered the explanation offered in the application under Section 5 of the Limitation Act and has rightly found that delay in filing first appeal does not deserve to be condoned. He would further submit that each day's delay was not explained in the application. 11.This Court has perused the application under Section 5 of the Limitation Act presented before the 1 Appellate Court. It was explained in the application that application for obtaining certified copy was moved on 1 April, 2004, which was received on 6th April, 2004 and the judgment and decree was immediately placed before the Range Officer, Dhamtari on 8-4-2004, which in turn was immediately forwarded to the DFO on 10-4-2004. After receiving the certified copy and the record on 12-4-2004, the matter was placed before the concerned DFO, however, in the meanwhile, the office of the DFO was shifted to a new building and because of this inten/ening event, the file was tagged with another file which was searched and located when the plaintiff moved an application -k before the DFO on 12-7-2004 for compliance of decree passed by the trial :KtN^. h"ni^ii'' Court. The DFO immediately directed the concerned subordinate staff for filing appeal which was preferred on 17 July, 2004. 12.1n the matter of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others1, the Hon'ble Supreme Court, while dealing with the issues regarding condonation of delay, sufficient cause and reasonable ground in explaining delay, has held that when the delay in preferring the appeal is not malafide and the delay is not enormous, Court should be liberal in condoning the delay and giving opportunity to the parties to contest the case on merits. 13.1n the matters of G. Ramegowda, Major and others Vs. Special land Acquisition Officer, Bangalore2 and Apangshu Mohan Lodh and others Vs. State of Tripura and others3, the Hon'ble Supreme Court has taken similar view as in the case of Collector, Land Acquisition, Anantnag (Supra) to hold that the Court should adopt a liberal and justice oriented approach while considering prayer for condonationof delay under Section 5 of the Limitation Act. 14.Having gone through the record, particularly, explanation offered in the application under Section 5 of the Limitation Act preferred by the appellants before the 1st Appellate Court, this Court would conclude that learned 1st Appellate Court has taken a very strict view of the matter while refusing to condone the delay of 2 months and 17 days. The explanation seeking condonation of delay was natural and practically each day's delay has been explained. In the opinion of this Court, the 1st Appellate Court should have allowed prayer for condonation of delay and should have heard appeal on merits. 15-Relying on the law laid down by the Supreme Court, this Court would answer the substantial question of law in negative to hold that 1 Appellate Court was 1AIR 1987 SC 1353 2 (1988) 2 Supreme Court Cases 142 3 (2004) 1 Supreme Court Cases 119 .. ;;3"-^:,, (^ Barve not justified in rejecting the application for condonation of delay and consequently, dismissing the appeal. 16.1n the result, second appeal is allowed. The impugned judgment and decree is set aside. The matter is remitted back to the 1st Appellate Court for deciding the appeal on merits. Record ofthe Court below be sent back immediately. The 1st Appellate Court is also directed to hear and dispose of the appeal as soon as possible, preferably within a period of 3 months from the date of appearance of the parties. The parties shall appear before the 1st Appellate Court on 14th June. 2011. l Sd//- Prashant Kumar Mishra Judge