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2011 DIGILAW 375 (JHR)

Arun Singh Modak v. Kalu Singh Modak

2011-04-27

DHIRUBHAI NARANBHAI PATEL

body2011
ORDER D.N. Patel, J. 1. The present writ petition has been preferred against the order, passed by the learned District Judge, Seraikella-Kharsawan in Title Appeal No. 32 of 2007 whereby, delay in preferring the appeal by the present Petitioner of 722 days have not been condoned and therefore, the present Appellant of Title Appeal No. 32 of 2007 has preferred this writ petition. 2. Counsel for the Petitioner submitted that against the preliminary decree drawn by the learned trial Court, the aforesaid Title Appeal was preferred with a delay condonation application, which is at Annexure-1 to the memo of the present petition. In paragraph Nos. 4, 5 and 6, the reasons have been given for delay and there are reasonable reasons for condonation of delay. This aspect of the matter has not been properly appreciated by the lower appellate Court and in one sentence, the delay condonation application has been dismissed viz. "Since the parties inter se have appeared before the Commissioner to participate in the preparation of final decree submits that they were ignorant of the preliminary decree cannot be accepted". The aforesaid reason is the only reason given in the impugned order and ignoring the reasons, stated in paragraph Nos. 4, 5, and 6. Therefore, let the matter may be remanded back for hearing for fresh consideration on delay condonation application, preferred in the Title Appeal by the present Petitioner. 3. Though the Respondents are served, nobody appeared on behalf of the Respondents. 4. Having heard counsel for the Petitioner and looking to the facts and circumstances of the case and the impugned order, passed by the District Judge, Seraikella dated 23rd September, 2008 in Title Appeal No. 32 of 2007 I hereby, quash and set aside the impugned order mainly for the following facts and reasons: (i) It appears that the Respondents had instituted Partition Suit No. 9 of 2002. Preliminary decree was drawn by the learned trial Court. Against this preliminary decree, the present Petitioner preferred Title Appeal No. 32 of 2007 before the District Court, Seraikella along with delay condonation application under Section 5 of the Limitation Act. (ii) Looking to the delay condonation application in paragraph Nos. 4, 5 and 6, the following reasons have been given: 4. Against this preliminary decree, the present Petitioner preferred Title Appeal No. 32 of 2007 before the District Court, Seraikella along with delay condonation application under Section 5 of the Limitation Act. (ii) Looking to the delay condonation application in paragraph Nos. 4, 5 and 6, the following reasons have been given: 4. That in the context it may be significantly competent to mentioned here that the Appellant/Petitioners are poor & illiterate background & in the meanwhile Petitioner pairvikar was bedridden and suffering various disease from 14.9.05 to 12.9.2007, as such the appeal is being filed some delayed. It would be apparent that the Appellant were not informed by their lawyer to the above facts & such they could not be taken proper steps in timely. 5. That the Appellant/Petitioner first time came to know when they approached to the lawyer i.e. on 13.09.07 and as such they filed objection to the Commissioner report and after hearing the same the Court was pleased to pass order that the Pleader Commissioner Report correct & confirmed, hence, the Appellant/Petitioner have procured certified copy of the judgment decree & order dated 14.9.07 to take proper steps to the above effect & hence this Appeal/ Petition. 6, That, it is submitted on behalf of the Appellant that they were/are never aware of such delayed nor negligent on the part of the Appellant due to poor illiterate and ignorant and at the same time pairvikar was suffering from tuberculosis in various other disease as mentioned above." The aforesaid are the grounds canvassed by the present Petitioner for condonation of delay. (iii) It appears that the learned lower appellate Court has not appreciated these grounds and passed the impugned order only on the ground that "Since the parties inter se have appeared before the Commissioner to participate in the preparation of final decree submits that they were ignorant of the preliminary decree cannot be accepted. Only on this ground, delay condonation application has been dismissed without appreciating the grounds stated in paragraph Nos. 4, 5 and 6 as stated hereinabove. 5. Only on this ground, delay condonation application has been dismissed without appreciating the grounds stated in paragraph Nos. 4, 5 and 6 as stated hereinabove. 5. In view of the aforesaid facts and reasons, I hereby, quash and set aside the order, passed by the District Judge, Seraikella-Kharsawan dated 23rd September, 2008 in Title Appeal No. 32 of 2007 and the matter is remanded to the District Court, Seraikella-Kharsawan for its fresh consideration on the delay condonation application, preferred by the Petitioner in Title Appeal No. 32 of 2007. 6. With the aforesaid directions, this writ petition is disposed of. In view of the final disposal of the main writ petition, I.A. No. 2016 of 2010 also stands disposed of.