Case Note & Summary
The case arises from a second appeal against the judgment of the first appellate Court dated 26.7.2011 in Misc. Civil Application No.291 of 2011, which rejected the appellants' application for condonation of delay in filing a first appeal against the decree in Special Civil Suit No.848 of 2003. The original suit was filed by the respondents (plaintiffs) against the appellants (defendants) for partition and separate possession of property. The trial Court decreed the suit on 10.6.2009. The appellants, being aggrieved, sought to file a first appeal but there was a delay. They filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay, stating that the certified copies of the judgment and decree were received on 15.2.2010, and that the original defendant No.1 (Smt. Varhyan) died on 10.9.2010, causing further delay. The first appellate Court rejected the application, holding that the appellants failed to show sufficient cause. The High Court admitted the second appeal on the substantial question of law whether the finding of the first appellate Court was perverse. After hearing arguments, the High Court found that the first appellate Court had proceeded on a wrong footing by ignoring the evidence on record, particularly the death of defendant No.1 and the date of receipt of certified copies. The High Court held that the finding was perverse and set aside the impugned order, condoning the delay and restoring the first appeal to the file of the first appellate Court for hearing on merits.
Headnote
A) Limitation Act - Condonation of Delay - Sufficient Cause - Section 5 of Limitation Act, 1963 - The first appellate Court rejected the application for condonation of delay on the ground that the appellants failed to show sufficient cause, but the High Court found that the appellate Court ignored material evidence, including the death of original defendant No.1 and the date of receipt of certified copies, rendering its finding perverse. Held that the appellate Court must consider all relevant facts and not proceed on a wrong footing (Paras 1-22).
Issue of Consideration
Whether the finding recorded by the first appellate Court in deciding the application for condonation of delay to prefer first appeal that the appellants have not shown sufficient cause for condoning the delay is not based upon the facts before it and is thus perverse?
Final Decision
The High Court allowed the second appeal, set aside the impugned order dated 26.7.2011, condoned the delay in filing the first appeal, and restored the first appeal to the file of the first appellate Court for hearing on merits.
Law Points
- Condonation of delay
- Sufficient cause
- Perverse finding
- Section 5 of Limitation Act
- 1963
- Section 100 of Code of Civil Procedure
- 1908
