JUDGMENT : (DEVASHIS BARUAH, J.) Heard Ms. R. Choudhury, the learned counsel appearing on behalf of the appellant and Mr. A. Sattar, the learned counsel who appears on behalf of the respondents. 2. This is an Appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the order dated 31.08.2017 passed in petition No.443/2015 dated 30.01.2015 arising out of Title Appeal No.12/2017 whereby the petition No.443/2015 which was an application filed under Section 5 of the Limitation Act, 1963 (for short, ‘the Act of 1963) read with Order XLI Rule 3A of the Code was rejected and thereby leading to the dismissal of the Appeal being Title Appeal No.12/2015 and the confirmation of the judgment and decree dated 08.09.2014 in Title Suit No.498/2010. 3. It is relevant to take note of that vide an order dated 04.12.2017, the learned Coordinate Bench of this Court had admitted the Appeal by formulating two substantial questions of law which reads as under:- 1. Whether the learned First Appellate Court committed error of law in not considering the grounds as stated by the appellant in the condonation of application as sufficient ground and rejecting the prayer for condoning the delay in preferring the title appeal and thereby not admitting the T.A. No. 12/2015? 2. Whether the learned Trial Court committed error of law in not considering and declaring any share to appellant/defendant No. 1 inasmuch as it is apparent on the face of record that the appellant is also a legal heir of Late Shri Hari Dayal Seal? 4. At the outset, it is being submitted at the bar by both the counsels appearing on behalf of the parties that the second substantial question of law so formulated is a ground of objection which was taken in Title Appeal No.12/2015. Keeping that in mind, this Court would take up the instant Appeal to adjudicate as to whether the two substantial questions of law are involved in the instant Appeal. 5. The first substantial question of law so formulated as stated herein above pertains to as to whether the learned First Appellate Court committed error of law in not considering the grounds stated by the appellant in the condonation application as sufficient ground and rejecting the prayer for condoning the delay in preferring the Title Appeal. 5. The first substantial question of law so formulated as stated herein above pertains to as to whether the learned First Appellate Court committed error of law in not considering the grounds stated by the appellant in the condonation application as sufficient ground and rejecting the prayer for condoning the delay in preferring the Title Appeal. It is relevant to take note of that on 08.09.2024, the learned Court of the Munsiff No.3, Kamrup (M) at Guwahati (for short, ‘the learned Trial Court’) had decreed the suit being Title Suit No.498/2010 in favour of the respondents herein who were the plaintiffs. It is the case of the appellant as can be seen from the application filed for condonation of delay that she came to learn about the said judgment and decree on 03.12.2014 when the Civil Nazir went for execution of the decree and thereupon the appellant applied the certified copy of the said judgment. It is also stated that the appellant on account of her eviction from the suit room was compelled to take shelter in a neighbouring house and because of such eviction being carried out, she fell ill. Upon recovery on 28.12.2014, the appellant met a counsel for legal redressal. The counsel advised the appellant to come on 02.01.2015 as the Civil Court was to remain in vacation during the winter recess. Accordingly, on 02.01.2015, the appellant engaged the counsel who after obtaining the certified copy on 19.01.2015 filed the Appeal. At this stage, it is relevant to observe that on account of a Notification issued by the Gauhati High Court in its administrative side, the Appeal was filed by the Appellant before the learned District Judge, Kamrup (Metro). The Appeal was endorsed to the learned Court of the Additional District Judge No.2, Kamrup (Metro) for disposal. As there was a delay of 102 days in filing the Appeal, an application under Section 5 of the Act of 1963 was filed seeking condonation of delay. 6. The Appeal was endorsed to the learned Court of the Additional District Judge No.2, Kamrup (Metro) for disposal. As there was a delay of 102 days in filing the Appeal, an application under Section 5 of the Act of 1963 was filed seeking condonation of delay. 6. It is also seen that the respondents in the instant Appeal who were also the respondents before the learned Court of the Additional District Judge No.2, Kamrup (M) at Guwahati (for short, ‘the learned First Appellate Court’) objected to the said application on the ground that the appellant had knowledge about the judgment and decree on the basis of the report so submitted by Civil Nazir that he went to the suit room on 07.11.2014 and could not execute the decree for which he sought police help. It is therefore the case if the respondents that the appellant had due notice on 07.11.2014, if not earlier. 7. The learned First Appellate Court taking into account the objections so taken by the respondents in the said Appeal rejected the said application disbelieving the case of the appellant that the appellant came to learn about the judgment and decree only on 03.12.2014 on which date the appellant was evicted from the suit room. The learned First Appellate Court further disbelieved that the counsel who represented the appellant before the learned Trial Court did not convey about the judgment and decree passed on 08.09.2014 in Title Suit No.498/2010. The learned First Appellate Court therefore on the basis thereof held that there was a delay which was not duly explained and as such rejected the said application. The consequential effect of the said application being rejected was that the Appeal was also dismissed. 8. This Court has heard the learned counsels appearing on behalf of both the parties. The learned counsel appearing on behalf of the appellant submitted that it is a well settled principle of law that while adjudicating the provision of Section 5 of the Act of 1963, the learned Courts are required to liberally construe the sufficient cause on the ground that rights of the parties are to be decided on merit. The learned counsel appearing on behalf of the appellant submitted that it is a well settled principle of law that while adjudicating the provision of Section 5 of the Act of 1963, the learned Courts are required to liberally construe the sufficient cause on the ground that rights of the parties are to be decided on merit. The fact that the appellant had categorically stated on affidavit that she had no notice till 03.12.2014 when she was evicted from the suit room and thereupon the materials on record would show that the appellant was diligent in pursuing her legal remedies was apparent on the face of the record. The learned counsel for the appellant further submitted that the learned First Appellate Court without even examining the Civil Nazir who had submitted the report on 07.11.2014 had presumed that the Civil Nazir had visited the said suit room and met the appellant. There was also nothing on record to show that the Civil Nazir met the appellant on 07.11.2014. The learned counsel for the appellant therefore submitted that the learned First Appellate Court ought to have condoned the delay in filing the appeal. 9. Per contra, Mr. A. Sattar, the learned counsel appearing on behalf of the respondents submitted that although the provisions of Section 5 of the Act of 1963 is to be liberally construed, but the explanation of the delay has to be proper. He submitted that the explanation of the delay in the instant case was not at all bonafide taking into account that the appellant had due notice on 07.11.2014, if not earlier from her earlier counsel. 10. This Court has given an anxious consideration to the respective submissions in respect to the first substantial question of law so formulated. The materials on record show that the appellant had categorically stated that on 03.12.2014, the appellant came to learn about the judgment and decree on the ground that the earlier counsel who contested on behalf of the appellant did not inform her. It is further seen that immediately after 03.12.2014, the appellant took all necessary steps with due diligence which aspect the learned First Appellate Court ought to have taken into consideration while deciding an application under Section 5 of the Act of 1963. It is further seen that immediately after 03.12.2014, the appellant took all necessary steps with due diligence which aspect the learned First Appellate Court ought to have taken into consideration while deciding an application under Section 5 of the Act of 1963. Further to that, without examining the Civil Nazir and arriving at the conclusion that the Civil Nazir visited the suit room, met the appellant and informed the appellant about the judgment and decree in the opinion of this Court amounts to perversity in the findings of the learned First Appellate Court. In the opinion of this Court, the order passed by the learned First Appellate Court on 31.08.2017 by which the application filed under Section 5 of the Act of 1963 was rejected suffers from perversity and further that the learned First Appellate Court had taken a very hyper technical approach which is not the law as laid down by the Supreme Court in various judgment. 11. Considering the above, in the opinion of this Court, the first substantial question of law is duly involved in the instant Appeal. 12. This Court further duly takes note of that the second substantial question of law relates to the merits. Taking into account that the second substantial question of law would involve a decision on adjudication of facts which the learned First Appellate Court would be better suited to address, this Court deems it proper that the Appeal is required to be remanded back in terms with Order XLI Rule 23 of the Code. 13. At this stage, it has been submitted by the learned counsels appearing on behalf of both the parties that in view of the amendment made to the Bengal, Agra and Assam Civil Courts Act, 1887, the Appellate Court now would be the Court of the Civil Judge (Senior Division) at Guwahati taking into account that the value of the suit is less than Rs.5 lakhs. 14. Accordingly, the instant Appeal stands disposed of with the following observations and directions:- (i) The application being petition No.443/2015 for condonation of delay under Section 5 of the Act of 1963 filed before the learned First Appellate Court is allowed. (ii) The Appeal being Title Appeal No.12/2015 is restored to the file of the learned First Appellate Court. 14. Accordingly, the instant Appeal stands disposed of with the following observations and directions:- (i) The application being petition No.443/2015 for condonation of delay under Section 5 of the Act of 1963 filed before the learned First Appellate Court is allowed. (ii) The Appeal being Title Appeal No.12/2015 is restored to the file of the learned First Appellate Court. Taking into consideration that the jurisdiction of the Appellate Court now would be the Court of the Civil Judge (Senior Division), Kamrup (M) at Guwahati, this Court directs that the Appeal be decided by the learned Court of the Civil Judge (Senior Division) No.1, Kamrup (M) at Guwahati. (iii) The learned Court of the Civil Judge (Senior Division) No.1, Kamrup (M) at Guwahati, i.e. the learned First Appellate Court shall decide the Appeal on merits. (iv) Taking into account that this Court has exercised the powers under Order XLI Rule 23 of the Code, this Court further in exercise of the powers under Order XLI Rule 26 of the Code directs both the parties to appear before the learned First Appellate Court on 16.07.2025. 15. The Registry shall forthwith return the records to the learned First Appellate Court, i.e. the Court of the Civil Judge (Senior Division) No.1, Kamrup (M) at Guwahati and ensure that the said records are available before the learned First Appellate Court on or before the next date so fixed herein above. 16. Before parting with the record, this Court observes that when the instant Appeal was taken up in the first half, none has appeared on behalf of the Appellant, and as such, an order was passed for dismissal of the Appeal for default. However, before rising for recess, mention was made that on account of certain personal inconvenience, the learned counsel for the Appellant could not appear when the matter was called. This Court agreed to take up the Appeal on the condition that a cost of Rs.15,000/- be deposited before the Registry of this Court forthwith. It was brought to the attention of this Court that the said amount has been duly deposited before the Registry. Taking into account that the Appeal has been allowed, this Court directs the Registry to refund the said amount of Rs.15,000/- to the learned counsel for the Appellant who had deposited the said amount on production of the certified copy of this judgment.