Koushaliya Devi vs. Narayani Devi

(1) S.A. No.196/2007 (Kaushalya Devi Vs. Smt. Narayani Devi and others)

2/11/2015

Shri Deepak Shrivastava, Advocate for the appellant.

None for the respondents.

Heard on admission.

This appeal, under Section 100, CPC, is directed against the order dated 12/1/07 in First Appeal No. 13- A/2006 dismissing the application under Section 5 of the Limitation Act and consequently the first appeal arising out of the judgment and decree of the trial Court dated 10/5/05 in Civil Suit No.68-A/04.

This Court had ordered for issuance of notices to the respondents, but none has appeared including respondent no.7, though served.

Learned counsel contends that the appeal is barred by only 13 days which was filed along with an application under Section 5 of the Limitation Act. Affidavits of his counsel were also annexed to demonstrate the fact that the appellant did not have the knowledge of the judgment and decree passed by the trial Court up till 23/6/05 and no sooner did he receive the information on the said date, an application

(2) S.A. No.196/2007 (Kaushalya Devi Vs. Smt. Narayani Devi and others)

was moved for obtaining certified copy of the judgment and decree which was obtained on 28/6/05 and the thereafter appeal was immediately filed on the same day. As such, the delay of 13 days in filing the appeal was bonafide.

It is submitted that the first appellate Court has adopted too technical approach in the matter of consideration of application under Section 5 of the Limitation Act seeking condonation of delay of only 13 days in filing the appeal. It is further submitted that the delay was not so fatal warranting dismissal of the first appeal as time barred.

Having perused the order impugned and considering the submissions advanced, in the opinion of this Court, the Court below did not, at all, bear in mind the concept of justice, equity and good conscience while deciding the application under Section 5 of the Limitation Act seeking condonaton of delay of 13 days in filing the appeal on the ground of lack of knowledge which was well explained in the application supported by an affidavit of the counsel for the appellant.

(3) S.A. No.196/2007 (Kaushalya Devi Vs. Smt. Narayani Devi and others)

Accordingly, the impugned order is set aside. Record be sent back to the first appellate Court for consideration of the appeal on merits after notice to all the parties.

Appeal disposed of, accordingly.

(Rohit Arya) (and) Judge