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2017 DIGILAW 1452 (RAJ)

BHANI DEVI v. PHOOLCHAND

2017-07-03

PRAKASH GUPTA

body2017
JUDGMENT : Prakash Gupta, J. This second appeal is directed against the judgment and decree dated 26.08.2010 passed by Additional District & Sessions Judge, Jhunjhunu whereby the appeal filed by the appellants was dismissed on the ground of limitation. 2. It is submitted by Shri Harendra Singh that the appellate court while passing the impugned judgment has not properly considered the explanation submitted by the appellants in the application under Section 5 of the Limitation Act regarding the delay in filing the appeal. It is also submitted that the delay in filing appeal was only 2 days. 3. On the other hand, learned counsel for the respondents Shri S K Singodiya submitted that he has no objection if the appeal is allowed and matter is remitted back to the appellate court for afresh decision on the merits of the case. 4. Having regard to the submission made by the learned counsel for the parties, this second appeal is admitted on the following substantial questions of law raised in the appeal:- "(i) Whether the order passed by the learned appellate court in rejecting the appeal of the appellants defendants on the ground of delay only, is correct? 5. With the consent of both the learned counsel for the parties, the appeal is being decided today itself. 6. A perusal of the impugned judgment of the learned first appellate court would reveal that the learned first appellate court dismissed the appeal only on the ground of delay of two days in filing the appeal. 7. In my considered view when substantial justice and technical considerations are pitted against each other, cost of substantial justice deserves to be given preference. 8. In view of the above, the learned first appellate court has committed error and illegality in dismissing the appeal filed by the appellants on the ground of delay and the application under Section 5 of Limitation Act filed before the first appellate court deserves to be allowed and delay in filing appeal deserves to be condoned. The substantial question of law framed by this Court is decided accordingly. 9. Consequently, the application for condonation of delay is allowed and delay in filing the first appeal is condoned and the instant second appeal is allowed. The judgment and decree dated 26.08.2010 are set aside and the matter is remanded back to the first appellate court for afresh decision on merits of the case. 9. Consequently, the application for condonation of delay is allowed and delay in filing the first appeal is condoned and the instant second appeal is allowed. The judgment and decree dated 26.08.2010 are set aside and the matter is remanded back to the first appellate court for afresh decision on merits of the case. Both the parties are directed to remain present in the lower appellate court on 17.08.2017. Learned appellate court is directed to decide the appeal expeditiously but not later than three months from today. Office is directed to send back the record along with a copy of this judgment forthwith.