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2017 DIGILAW 135 (HP)

Amar Singh v. Mauji Ram

2017-03-07

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. (Oral) - Having regard to the nature of the order, this Court purposes to pass, it may not be necessary to deal with the facts of the case save and except that the present appellant/plaintiff filed a suit for permanent prohibitory injunction, restraining the defendants/respondents from interfering over the suit land, which was decreed by the learned Senior Sub Judge, Hamirpur, District Hamirpur, H.P, vide judgment and decree dated 23.5.1997. 2. Respondents/defendants being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, preferred an appeal before the learned Additional District Judge, Hamirpur, H.P, which came to be registered as Civil Appeal No.27 of 1997. Learned Additional District Judge, vide judgment and decree dated 22.10.2002 reversed the findings returned by the learned trial Court, as a result of which, judgment and decree passed by the learned trial Court came to be quashed and set-aside. In the aforesaid background, appellant/plaintiff approached this Court by way of instant Regular Second Appeal, praying therein for restoration of the judgment and decree passed by the learned trial Court after setting-aside the judgment and decree passed by the learned Additional District Judge, Hamirpur, H.P., in Civil Appeal No.26 of 1997. 3. During the proceedings of the case, it emerged that appeal having been filed by the appellant/defendant against the judgment and decree passed by the learned trial Court was time barred and accordingly aggrieved party i.e. appellant/defendant preferred an application for condonation of delay along with appeal. But learned First Appellate Court vide order dated 14.8.1997 taking note of the office report permitted the appellant/defendant to withdraw the application filed under Section 5 of the Limitation Act, and proceeded to decide the matter on merits. 4. Mr. K.D. Sood, learned Senior Advocate, specifically invited the attention of this Court to the application for condonation of delay having been filed by the defendant to demonstrate that the appeal was time barred and the same could not be entertained by the learned First Appellate Court without condoning the delay and as such, judgment and decree passed by the learned First Appellate Court deserve to be quashed and set-aside. 5. Mr. 5. Mr. Ajay Sharma, learned counsel appearing on behalf of the defendant specifically invited the attention of this Court to the office report, wherein it was reported that the appeal was within time and as such, leaned First Appellate Court permitted the appellant/defendant to withdraw the application filed under Section 5 of the Limitation Act. 6. Careful perusal of the contents contained in the application under Section 5 of the Limitation Act, preferred by the defendant(appellant before the learned First Appellate Court) clearly suggest that learned First Appellate Court erred in calculating the limitation period and wrongly proceeded to entertain the appeal without condoning the delay. 7. It is well settled that till the time delay, if any, is not condoned in maintaining the appeal, there is no legally constituted appeal before the Court in the eyes of law and no order, if any, can be passed by the Courts in the main appeal without condoning the delay. (See. Judgment passed by this Court in Civil Revision No.393 of 2011, titled as Sh. Ajay Sharma and v. Shiv Mandir and Shiv Bari Development & Welfare Society & another decided on 24.12.2010 .) 8. Accordingly, this Court deems it fit to remand the case back to the learned First Appellate Court with the direction to decide the application for condonation the delay at first instance before considering the appeal on merits. 9. Consequently, in view of the above, the judgment and decree passed by the learned Fist Appellate Court is quashed and set-aside and matter is remanded back to the learned First Appellate Court to decide the same afresh. Needless to say, application for condonation of delay would be considered and decided by the learned First Appellate Court at first instance before proceeding further in the matter. The parties are directed to appear before the learned First Appellate Court on 31st March, 2017. Record of the learned courts below be sent forthwith, so as to reach the First Appellate Court well before the date fixed. 10. Accordingly, the present appeal is disposed of so also pending applications, if any, stand infructuous.