Judgment:
P.K. Sarkar, J.
1. This second Appeal arises out of the order dated 28.4.1983, passed by the District Judge, East Champaran in T.A. No. 104 of 1982, whereby he refused to condone the delay in filing the appeal and rejected the memo of appeal as time barred. Thus, as a result the appeal automatically stood disposed of.
2. The brief facts giving rise to this appeal are as follows:
The Plaintiff-appellant filed a suit bearing Partition Suit No. 259 of 1976/45 of 1979 with a prayer for partition of the plaintiff's due share in the suit property, fully described in Schedule II of the plaint by metes and bounds and for allotment of separate Takhta to his share on appointment of survey knowing Pleader Commissioner. The matter was heard by the learned 1st Additional Subordinate Judge, Motihari and by his judgment dated 28.9.1982 he decreed the suit in part on contest with proportionate cost and observed in the order that the plaintiff is entitled for partition of his due share claimed in the plaint in the suit property, except the property which has been held as self acquired property of the defendants, as held in the judgment by metes and bounds and also for allotment of a separate Takhta of his share on appointment of survey knowing Pleader Commissioner through Court at his instance.
3. Being aggrieved and dissatisfied with the aforesaid order the plaintiff-appellant filed an appeal before the District Judge, East Champaran, Motihari and since the appeal was not filed within time, a petition under Section 5 of the Limitation Act was filed, which came up for consideration before the learned District Judge for condonation of delay. The learned District Judge heard the matter and found that the appellant's explanation is not satisfactory and hence the delay was not condoned and the memo of appeal was rejected. Hence this second Appeal has been filed by the plaintiff-appellant.
4. The learned Counsel for the appellant submits that the memo of appeal could not be filed in time as the appellant was ill. The learned District Judge did not consider this fact of illness and tried to analyse the matter from different angle regarding filing of the certified copies etc. and came to a conclusion that the appeal was filed after 55 days. The learned District Judge further observed that this abnormal delay has remained unexplained, and that the law is well settled that the appellant has to furnish satisfactory explanation for each day of delay in presenting the appeal for getting the delay condoned under Section 5 of the Limitation Act. It is submitted that the Plaintiff could not file that memo of appeal due to his illness and also filed a medical certificate, which is mentioned in the order itself, which shows that he was suffering from tonsilitis with dysentry and was fit for normal work on 3.12.1982, but this aspect of the case was not properly considered by the District Judge and he did not give any ground for disbelieving the medical certificate or did not hold that the appellant was not actually ill and that the submission was not correct.
5. It is further submitted that the Supreme Court in its decision has held that if it is accepted that the explanation of each day of delay in presenting the appeal is to be given, why not the delay of each minute and second should be explained. In this connection he relied on the decision of the Supreme Court reported in the case of Collector, Land Acquisition and Anr. v. (Mst.) Katiji and Ors. 1987 (35) BLJR 465, where it has been observed as follows:
The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression 'sufficient cause'. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits...
In that view of the matter a considered view be taken and it should be seen that injustice be not done only on this strict question of law that simply on that account without taking into consideration the explanation furnished by the plaintiff-appellant regarding illness the petition for condonation of delay cannot be dismissed.
6. The learned Counsel appearing on behalf of the respondents submits that this case is of the year 1976. He further submits that it is clear from the order of the District Judge that the appellant filed an application for certified copy of the judgment and decree on 28.9.1982, which was rejected on 29.11.1982 and thus this appellant had knowledge of the case and knowing the same he did not take proper steps.
7. I have carefully gone through the submissions of both the parties and I feel that considering the delay of 55 days and the fact of illness and also the decision of the Supreme Court, as mentioned above, the lower appellate Court did not take a considered view in the matter. On the facts and in the circumstances of the case I feel that the plaintiff-appellants should get an opportunity to be heard on merit of the case by the learned lower appellate Court.
8. In the result this second Appeal is allowed and the impugned order dated 28.4.1983 is set aside. However, considering the submissions of the learned Counsel for respondents that this case is pending since 1976, the lower appellate Court is directed to dispose of the matter within three months in the light of the observations made above. There shall be no order as to costs. Let the lower Court records be sent down immediately.