ORDER 1. Heard on the question of admission. 2. This appeal is admitted on the following substantial questions of law : ''(i) Whether the Court below has erred in law by not giving an opportunity to the appellant to file an application for condonation of delay ? (ii) Whether the Court below after having come to a conclusion that the appeal is barred by limitation and no application for condonation of delay has been filed, was right in also deciding the appeal on merits or not ?'' 3. Since the controversy involved in the present appeal lies in a narrow compass, therefore, with the consent of the parties, the appeal is heard finally. 4. This Second Appeal under section 100 of CPC has been filed against the judgment and decree dated 24th July, 2018 passed by First Additional Judge to the Court of First Additional District Judge, Bhind in Regular Civil Appeal No. 44/2017, thereby dismissing the appeal filed by the appellant against the judgment and decree dated 18.5.2017 passed by First Civil Judge, Class-II, Bhind in Civil Suit No. 63A/2016. 5. The necessary facts for the disposal of the present appeal in short are that the respondents have filed a suit for eviction against the appellant under sections 12(1)(a),(1)(b), 12(1)(f) of MP Accommodation Control Act. The suit filed by the respondents under sections 12(1)(a) and 12(1)(f) of MP Accommodation Control Act was decreed by judgment and decree dated 18.5.2017 passed by the First Civil Judge, Class-II, Bhind in Civil Suit No. 63-A/2016. 6. It appears that the appellant filed an appeal on 3.7.2017. On the same day, the appellant was heard on the question of admission and the appeal was admitted for final hearing and the execution of the impugned judgment and decree was also stayed by the first appellate Court. The notices were issued. An application was filed by the respondent No. 1 under section 151 of CPC, which was rejected by the appellate Court by order dated 13.3.2018 and thereafter, the case was fixed for final arguments. On 7.4.2018, an application was filed by the appellant under Order 41 rule 27 r/w section 151 of CPC. Another application under Order 26 rule 9 of CPC r/w section 151 of CPC was filed by the appellant on 5.5.2018. On 7.4.2018, an application was filed by the appellant under Order 41 rule 27 r/w section 151 of CPC. Another application under Order 26 rule 9 of CPC r/w section 151 of CPC was filed by the appellant on 5.5.2018. On 14.5.2018, it was directed that the application filed under Order 41 rule 27 r/w section 151 of CPC and the application filed under Order 26 rule 9 r/w section 151 of CPC shall be heard at the time of final hearing. On 9.7.2018, the final arguments were heard and accordingly, on 24th July, 2018 the impugned judgment and decree was passed. The appellate Court, after considering the merits of the case, held that the respondents have succeeded in establishing their claim under section 12(1)(a) of MP Accommodation Control Act, but held that the suit accommodation is not bona fide required by the respondents and thus, the decree passed under section 12(1)(f) of MP Accommodation Control Act was set aside. However, at the same time, the appellate Court held that the appeal was filed beyond the period of limitation and thus, the appeal is liable to be dismissed on the ground of delay. 7. Paragraph 62 of the judgment reads as under: **62- ;g lgh gS fd fu.kZ; ikfjr gksus dh fnukad 18-5-2017 dks gh vihy ÁLrqr djus dh vof/k rhl fnu ÁkjaHk gks xbZ Fkh rFkk udy ÁkIr djus esa yxk le; ik¡p fnu ekQ fd, tkus ij vihy fnukad 22-6-2017 dks ÁLrqr dh tkuh pkfg, FkhA fnukad 22-6-2017 ds ckn Áfroknh xzh"edkyhu vodk'k vof/k dks vihy ÁLrqr djus dh vof/k esa lEefyr ugha dj ldrk Fkk] mls 22-6-2017 dks gh vihy ÁLrqr djuh pkfg, Fkh ijarq vihy nl fnu foyac ls 3-7-2017 dks ÁLrqr dh xbZ gS] blfy;s foyac ds vk/kkj ij Hkh vihy vikLr fd, tkus ;ksX; gSA** 8. Challenging the judgment and decree passed by the appellate Court, it is submitted by the learned Senior Counsel for the appellant that where an appeal against the judgment and decree has been filed belatedly, then until and unless the delay in filing the appeal is condoned, it cannot be said that there is any appeal in the eyes of law. It is further submitted that when the appeal was presented before the appellate Court, no objection was raised either by the Office or the Court and on the day one, the appeal was admitted for final hearing. It is further submitted that when the appeal was presented before the appellate Court, no objection was raised either by the Office or the Court and on the day one, the appeal was admitted for final hearing. Even during the pendency of appeal, no objection with regard to delay in filing the appeal was ever raised either by the Court or the respondents in the appeal. Even otherwise, if the Court was of the view that the appeal was filed belatedly, then the same is curable defect and an application for condonation of delay can be filed subsequently and under these circumstances, the appellate Court should have given an opportunity to the appellant to file an application for condonation of delay. It is submitted that when an appeal is filed belatedly and if it is not accompanied by an application for condonation of delay, then the appellate Court can either return the memorandum of appeal to the appellant to file it afresh along with the application under section 5 of Limitation Act or to provide a chance to file an application for condonation of delay. In the present case, the appellate Court without giving any opportunity to the appellant and to the surprise of the appellant, came to the conclusion in the impugned judgment and decree itself that the appeal filed by the appellant was barred by limitation. 9. Per contra, it is submitted by the counsel for the respondent No. 1 that even if the appeal has been dismissed as barred by limitation but the finding recorded by the appellate Court for granting decree under section 12(1)(f) of MP Accommodation Control Act still holds the field and thus, no prejudice would be caused to the appellant. It is further submitted that the appellant has not argued to show that the finding recorded by the appellate Court for granting a decree under section 12(1)(a) of the M.P. Accommodation Control Act is erroneous. 10. Heard the learned counsel for the parties. Section 3 of the Limitation Act reads as under : ''3. Bar of limitation.-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. 10. Heard the learned counsel for the parties. Section 3 of the Limitation Act reads as under : ''3. Bar of limitation.-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act- (a) a suit is instituted- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted- (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.'' 11. Thus, the question of limitation is to be considered by the Court and it can be said that it is the duty of the Court to find out whether the appeal filed by the litigant /appellant is within the jurisdiction or not ? This exercise has to be done on the very first day when the appeal is filed. 12. I have gone through the orders sheets of the Appellate Court. 13. This exercise has to be done on the very first day when the appeal is filed. 12. I have gone through the orders sheets of the Appellate Court. 13. The appeal was filed on 3.7.2017 and the order dated 3.7.2017 passed by appellate Court reads as under: **3-7-2017 vihykFkhZ }kjk Jh vrqy dqekj lDlSuk vf/koDrk mifLFkrA vihykFkhZ }kjk ;g vihy lhŒihŒlhŒ dh /kkjk 96 ds rgr U;k;ky; ÁFke O;ogkj U;k;k/kh'k oxZ 2 ds U;k;ky; ds f}rh; vfrfjDr O;ogkj U;k;kËkh'k oxZ&2 fHk.M ¼Jh KkusUnz dqekj 'kqDyk½ ds Ádj.k Øekad 63,@16 esa ikfjr fu.kZ; ,oa fMØh fnukad 18-5-2017 dks O;fFkr gksdj ÁLrqr dh gSA lkFk esa fu.kZ; dh Áfr is'k dh x;h gSA lkFk esa Lo;a dk 'kiFki= Hkh is'k fd;kA iath;u ij lqukA ÁFken`"V~;k vihy lquokbZ ;ksX; Árhr gksrh gS ftlls ewy vihy iath esa Ádj.k ntZ gksA vihykFkhZ dh vksj ls ,d vkosnu vkns'k 41 fu;e 5 lgifBr /kkjk 151 tkŒnhŒ dk is'k fd;k x;kA ftl ij vkbZŒ,Œ uEcj 1@17 ls fpfUgr fd;k x;kA vihykFkhZ vf/koDrk dks lqukA ÁR;FkhZ ØŒ 1 us vihykFkhZ rFkk ÁR;FkhZ ØŒ 2 yxk;r 06 ds fo#) eŒçŒ LFkku fu;a=.k vf/kfu;e ds rgr fookfnr LFkku [kkyh djkdj fjDr vfËkiR; fnyk, tkus ckor~ nkok is'k fd;k FkkA fo}oku v/khuLFk U;k;ky; }kjk ÁR;FkhZ ØŒ 1 dk nkok fMØh fd;k x;k gSA ftlls O;Fkhr gksdj ;g vihy is'k dh x;h gSA vihykFkhZ us ;g vkosnu bl vk'k; dk is'k fd;k gS fd ;g mDr fu.kZ; ,oa fMØh dk fu"iknu O;fFkr ugha fd;k x;k rks vihykFkhZ dks vihy is'k djus dk mn~ns'; foQy gks tk,xk] ftlls mDr fu.kZ; ,oa fMØh dk fu"iknu LFkfxr j[kk tk,A v/khuLFk U;k;ky; ds fu.kZ; ,oa fMØh ds fu"iknu dks LFkfxr ugha fd;k x;k rks vihykFkhZ dh vihy is'k djus dk mn~ns'; foQy gksxk vkSj mls lkjoku {kfr gksxh] ftlls vihykFkhZ dk vkosnu bl 'krZ ij Lohdkj fd;k tkrk gS fd vihykFkhZ fo}oku v/khuLFk U;k;ky; ds le{k vkt ls iUæg fnol ds vUnj ipkl gtkj :i;s dh tekur ,oa bruh gh jkf'k dk caËki= bl vk'k; dk is'k djs fd ;fn vihykFkhZ dh vihy fujLr dh x;h rks vihykFkhZ vihy fujLr djus dh fnukad ls nks ekg ds Hkhrj ÁR;FkhZ ØŒ 1@oknh dks fookfnr nqdku dk fjDr vf/kiR; lkSisaxk rFkk vihy yafcr jgus rd ÁR;sd ekg dh ik¡p rkjh[k rd vko';d :i ls fdjk;k vnk djrk jgsxk rc mDr fu.kZ; ,oa fMØh dh fu"iknu dh dk;Zokgh LFkfxr j[kh tk,A vkns'k dh ,d Áfr lacaf/kr U;k;ky; dks Hksth tk,A vihykFkhZ }kjk rhu fnol ds vUnj ryokuk ,oa vihy dh Áfr is'k dh tk, rks Áfr vihykFkhZx.k dks t;sZ leu vkgwr fd;k tk,A ewy vfHkys[k ryc gksA Ádj.k Áfr&vihykFkhZx.k dh mifLFkfr ,oa vafre rdZ gsrq fnukad 26-7-2017 is'k gksA** 14. Thus, it is clear that on 3.7.2017 the appellate Court did not take any objection with regard to delay in filing the appeal but on the contrary not only admitted the appeal but also granted stay of execution of decree. 15. I have gone through the entire order sheets of the appellate Court and it appears that no objection was ever taken by the appellate Court with regard to delay in filing the appeal. It appears that while deciding the appeal filed by the appellant, the appellate Court must have noticed that the appeal filed by the appellant was barred by limitation. Under these circumstances, where the Court itself had not taken any objection with regard to delay in filing the appeal at the earliest and considering the fact that non-filing of application for condonation of delay is a curable defect and the appellant can be permitted to file an application for condonation of delay at a later stage as well as the fact that until and unless the delay in filing the appeal is condoned, it cannot be said that there was any appeal in the eyes of law, this Court is of the view that the appellate Court after having noticed that the appeal is barred by limitation, should have granted an opportunity to the appellant to file an application under section 5 of the Limitation Act. 16. My view is fortified by the judgment passed by this Court in the case of Premchand Soni since deceased LRs Janki Bai and others v. Harish Chand, reported in 2012(1)MPLJ 65, which read as under : ''6. On bare perusal of the impugned judgment passed by learned first appellate Court this Court finds that on the basis of a decision of this Court Pradeep Kumar (supra), since the appeal of the tenant-defendant was barred by time and memorandum of appeal was not accompanied by any application to condone the delay under section 5 of the Limitation Act, the appeal was dismissed as not maintainable. Indeed, said decision of this Court has been reversed by the Supreme Court in State of M.P. And another v. Pradeep Kumar and another, (2000) 7 SCC 372 wherein the Supreme Curt has held that if an appeal is barred by time, the Court should either return the memorandum of appeal to the appellant to submit it along with the application under section 5 of the Limitation Act or should provide a chance to file application to condone the delay. Since neither the learned First Appellate Court returned the appeal to the appellant nor gave any chance to the appellant to file necessary application to condone the delay in filing the 7 appeal, I am of the view that on the basis of decision of Supreme Court State of M.P. v. Pradeep Kumar (supra), the impugned judgment cannot be said to be in accordance with law.'' 17. This Court in the case Dinesh Chandra Raghuvar Dayal Sharma v. Yashveer Singh Ghuraiya and others, reported in 2000 (II) MPWN 109 = 2000(3) MPLJ 243 has held as under : ''4. In this connection, it may be noticed that when there is a specific provision authorizing and empowering an authority to condone the delay on making out a sufficient cause, from the mere fact that the authority concerned has proceeded to decide the case on merits, it cannot be assumed that there is an implied condonation of delay. Sufficient cause for the delay has to be made out for its condonation and only then the concerned authority can assume jurisdiction to go into merits. Further, in the absence of the order of the concerned authority, it cannot be said that the delay, either expressly or by necessary implication had been condoned.'' 18. The Supreme Court in the case of State of MP and ors v. Pradeep Kumar and ors, reported in 2000 (2) JLJ 340 (SC)= 2000 (7) SCC 372 , has held as under : ''10. What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of rule 3-A? It must be noted that the Code indicates in the immediately preceding rule that the consequence of not complying with the requirements in rule 1 would include rejection of the memorandum of appeal. What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of rule 3-A? It must be noted that the Code indicates in the immediately preceding rule that the consequence of not complying with the requirements in rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the Court by the said rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without accompanying the application to condone delay the consequence cannot be fatal. The Court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the Court can treat the appeal as lawfully presented. There is nothing wrong if the Court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay. 19. Accordingly, this Court is of the considered opinion that the appellate Court has committed a material illegality by not granting an opportunity of hearing to the appellant to file an application for condonation of delay. Furthermore, once the Appellate Court was of the view that the appeal is barred by limitation, then it should not have decided the appeal on merits also. 20. Accordingly, the substantial questions of law are answered in affirmative. The judgment and decree dated 24th July, 2018 passed by First Additional Judge to the Court of First Additional District Judge, Bhind in Regular Civil Appeal No. 44/2017 is hereby set aside. The appeal is remanded back to the appellate Court. 21. The appellant is directed to file an application for condonation of delay before the appellate Court by 11th March, 2019. The appeal is remanded back to the appellate Court. 21. The appellant is directed to file an application for condonation of delay before the appellate Court by 11th March, 2019. The appellate Court is directed to decide the said application on its own merits and if the delay in filing the appeal is condoned, then the appellate Court shall decide the appeal on merits afresh without getting influenced by any of the observations already made on merits. 22. With the aforesaid observation, the appeal succeeds and is hereby allowed. N.K. Gupta with S.D. Singh for appellant; Prashant Sharma and Nirmal Sharma for respondent No. 1.