..^ y^, ^t.^ ^ 'i'y 1 ,. ^A y i /f: ^ft^'» °:^;siaa^s^p >'?' Plaintiffe HIGH COURT OF CMHATTISGARH AT BiLASPUR Second Appeal No.381 of 2SOS 1. Chandra Mani @ Manichand, Son of YudhishShimand, aaed about 30 2. 3. Respondents Defendants 1. 2. 3. Laybano, @ Layabati, Widow of iate Yudhishthimand, aged about years. Savitribai, daughter of Makhnu aged about 58 years. (Al! are agricuiturists and resident of village : Dhabakhar, P.H.N.38, Tehsil & District: Wishasamund - C.G.) Versus Pacimanjbai, Wife of Ishwar, ageei about 54 yeare, residert of viilage : Dongripali, Poiice ;Station : Jagdalpur, District : Sambaipur, Orissa. Pirobai, Wife of Tapo-Viira, aged about 50 years, resident of viitage : tetel, Savitripur Post: Bhagatdewri, Tehsil & Dlstrict: SVIahasamund (CG) State of Chhattisgarh through the Coitector, Mahasamund (C.G.) (Second Appeal under Ssction 100 ofthe CPC) Present:- Mr.V.K.Psndey, counsel forthe appeiiants. Mr.Ramakant Pandey, counset for respondent No.1. None present for respondent No.2. iVlr.U.K.S.Chandet, Psnei Lawyer for r^pondent No.3/State. (SB: Hon'bie Mr. T.P. Sharma, J.) ORAL JUDGNiENT (4-10-2010) 1. By this second appeal, the appeltante have chatlenged the iegality and propriety of the judgment dated 27.6.2005 passed by the 1st Addltionai District Judge, Mahasamund, in Civii Appeai N0.20A/2000 whereby tearned 1 Additional District Judge has dismissed the appeai on the ^ ground that the appeitants have not expteined ths dslay of three days in fiting the appea! beyond the period of iimitation. 2. The present appea! is admitted for consideration on the foilowing substantial question of law:- "Whether the lower appettate Court was not justified in rejecting the explanation of detay in fiiing the appeai?" 3. As per facts of the case, the present appeliants have flled appeat after fhree days of te iimttation before the tower appeltate Court, birt they have not flted an applteation for condonation of detay in filing the appeal. During the course of arguments when it was pointed out by the opposite party, thsn ths appeltants have filed an application for condonation of delay in filing the appeal. On 25.6.^)05 it was orally objected by theopposite party. The present appeiiants have taken ground in the appiication for condonation of delay that the appellants are readenSs of remote ptace and that is the cause for delay in filing the a^>eal which has been supported by the affidavit. 4. ! have heard ieamed counset for the parti^, psrussd the judgment impugned and records ofthe Courts betow. 5. Leamed counsel for ths appeliants submits that the appellants have expiainsd the deiay in filing the appeal, but the iowsr appellate Court has not considered the sams and has dismissed the appsai. 6. On the other hand, learned counsel for respondent No.1 supported the judgment impugned and submits that the appeliants were required to fi!e an appiication for condonation of delsy in fiiing the appeai aiong with appeat, but they have not fited such applicationand when it was objected by the respondents, then they have fited application which show that the appiication was not bonafide. 7. Learned counsei for respondent No.3 also supported the judgment 8. Definiteiy, as per facts of the case, the present appeilants havs not fiied apptication within limitation and have fiied after three days of its timitation. They have not filed any appiication for condonatton of delay at the time of filing of the appeat. Learned lov.'er appsltate Court has examined the appeai and on the ground that it was within Simitation has reglstsred the i^^^^t^^^^^^^B^ ^^^^^«W^^:v^ffMK:'^^^ appeat in regular appeal and has issued frotice to the respondents, but when it was objected by the respondents, ttien only the qsplication was filed. Even permission to file such application was given by fhe Court below vide order dated 24.6.2005. The aforesaid eircumstenceshowsthat the appeal was flled beyond the period of limitation, but the lowrer appellate Court has admitted the appea! for consideration after examination that the same was within limitetion and whsn mistake was pointed out by the opposlte party, then the Court beiow has granted time to file appropriate application; but has finaliy dismissed the appea! on the ground of iimitation. in case, She appeat was not filed wfthin the Simstation, the appeiiants were under obligation to explain the deiay of each day 9. in the presenf case, the appellants were filed the appeai after three days of its limitation and they were under obligatfon to expisin the delayof each day. in the absence of any contradictory aliegation, the ground mentioned in the appiication for condonation of delsy In filing ths appea! appears to be reasonabie, but the appeilants were under obligation to fiie an appiication aiong with memo of appeai whteh they havs not filed. 10. Considering ihe aforesaid circum^ances, it ss he!d that tfte Court below, w/ho itself has not pointed out the fact thsrt it was time barred appeai, was not justified in rejecting the appiication for condonation delay m filing the appeai that too of only three days. 11. Consequentiy, substantia! question of law tormuiated Tor ihe decision of the appeai is decided as positive. On the basis of decision on the aforesaid substantial question of law formulated for ihe dscision of tte appea!, the appeal is allowed. Judgment impugned passed by the lower appeliate Court is hereby set askie. The appeat Is remitted to the lower appsiiate Court for consideration on merits. Parties are riirected to remain present before the 1at Additional Distrtot Judge, Mahasamund on 8.11.2018. No order as to costs. Sd/- T.P. Sharma Judge ^