S.A. No. 402/2011 -1- HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava S.A. No. 402/2011 ....APPELLANT: Arogyanath Dwivedi PLAINTIFF s/o Late Shri Shivpratap Dwivedi Aged about 58 years, Occupation – Agriculture, R/o village Bardi, Tah. Chitrangi, District Sidhi, now Singrauli (MP) -Versus- ....RESPONDENT : The State of Madhya Pradesh DEFENDANT Through the Collector, District Sidhi, now Singrauli (M.P.) ------------------------------------------------------------------------------------- Shri Pawan Saxena, learned counsel for the appellant/plaintiff. Smt. Sheetal Dubey, learned Government Advocate for the respondent/defendant. ------------------------------------------------------------------------------------- J U D G M E N T { 30-03-2011 } This second appeal has been filed by the plaintiff against the judgment and decree passed by learned lower Appellate Court dismissing the appeal of the plaintiff as barred by time. 2. Following substantial question of law was framed by this Court while admitting the appeal which reads, thus: “Whether the first Appellate Court erred in substantial error of law in dismissing the appeal of the plaintiff as barred by time when there is sufficient material to condone the delay of 62 days?” S.A. No. 402/2011 -2- 3. On bare perusal of the application filed under Section 5 of the Limitation Act submitted before the learned first Appellate Court this Court finds that judgment and decree passed by the Trial Court on 30.6.2009 which came into the knowledge of the appellant on 6.8.2009 only and when he contacted the Reader of the Court he told that record has been deposited in the record room. Thereafter, on the next day (7.8.2009) appellant came to Sidhi and contacted his counsel who submitted an application for obtaining certified copy of the judgment and decree on the same date. The certified copy of judgment and decree was received by his counsel on 31.8.2009 at 5 P.M. The counsel gave information on telephone to the appellant that copy of the judgment and decree has been received as a result of which on telephone only the appellant instructed his counsel to get the appeal prepared. Thereafter, appellant arranged necessary funds to pay the fees etc. to his counsel and came to Sidhi on the next day on 1.9.2009 but he was not aware that what is the actual valuation of the suit so as to affix the proper Court fee, therefore, appeal could not be filed on 1.9.2009 and same was filed on 2.9.2009. 4. On going through the averments made in the application this Court finds that sufficient ground has been made out to condone the delay and the reply to this application was not filed by the State/defendant. The delay of 62 days has been satisfactorily explained and looking to the reasons assigned in S.A. No. 402/2011 -3- the application it is gathered that it was beyond the control of the plaintiff/appellant and therefore, the delay in filing the appeal occurred. 5. This substantial question of law is answered in favour of the appellant that there was sufficient material to condone the delay in filing the appeal beyond 62 days time and learned first Appellate Court erred in substantial error of law in dismissing the application under Section 5 of the Limitation Act and also the appeal. 6. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree dismissing the appeal as barred by time is hereby set aside and delay in filing the appeal is hereby condoned. Learned First Appellate Court is hereby directed to decide the appeal on merits. Looking to the facts and circumstances, the parties are directed to bear their own costs. (A.K. SHRIVASTAVA) JUDGE S/