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2015 DIGILAW 17 (ORI)

Maheswar Das v. Harish Ch. Sahu

2015-01-09

D.DASH

body2015
JUDGMENT The present appeal arises out of an order passed by the learned District Judge, Mayurbhanj, Baripada refusing to condone the delay of two days in presenting the memorandum of appeal challenging the judgment and decree passed by the learned Civil Judge (Jr. Division), Baripada in C.S. No.235 of 2007. The appeal has been admitted on the substantial question of law as under: “Whether the observation of the lower appellate Court that the ground advanced by the appellants in the limitation petition for condonation of delay in filing the appeal is not convincing and is sustainable in law?” 2. Heard learned counsel for the parties. Perused the impugned order. 3. Facts necessary to be stated for the purpose are the following :- The judgment being passed on 30.06.2011, the decree was signed on 08.07.2011. The copy application has been made before the expiry of the period of the appeal. It has been averred in the petition that the appellants because of their illness and heavy rain in the area could not establish contact in time with their learned counsel for which this delay of few days has occasioned. The lower appellate Court simply for the reason that the appellants have not substantiated their case of illness by filing medical certificate has refused to condone the delay and admit the memorandum of appeal. The approach of the First Appellate Court as it appears in such case of nominal delay in presenting the memorandum of appeal challenging the judgment and decree of the trial Court being viewed with other conduct of the appellants does not appear to be in the direction of advancement of the cause of justice and rather it is in a way of preventing free flow therefrom. It has always been said that such pedantic approach in the matter is not to be taken and it should be a justice oriented approach. Here in the present case when it has not been shown as to how the adversary has been materially affected or would be caused with senous prejudice and the right which accrued in favour of the adversary after long lapse of time is being taken away, the lower appellate Court ought not to have refused to condone such nominal delay in finally refusing to entrain the memorandum of appeal. Thus here on the face of the affidavit and taking into consideration, the nominal delay, non-filing of. Thus here on the face of the affidavit and taking into consideration, the nominal delay, non-filing of. medical certificate ought not to have taken as the ground to hold that no sufficient cause is shown for non- filing of appeal in time. So, the ground is not at all convincing and sustainable in the eye of law and it rather stems out of perversity. Therefore, the substantial question of law framed is answered in favour of the appellant. 4. In the result, the appeal stands allowed and in the circumstances without cost. The order of the First Appellate Court is hereby set aside and the delay is hereby condoned. It is for the lower Appellate Court now to proceed with the appeal for its disposal in accordance with law. In order to save delay, the parties are directed to appear before the lower Appellate Court on 10.02.2015 to receive further instruction. Considering the submissions of the learned counsel for the parties, it is directed that the First Appellate Court would do well to dispose of the suit within a period of three months being computed from the aforesaid date. Appeal allowed.