Heard learned counsel for the parties on the point of admission of second appeal and perused the records.
Original suit no. 58 of 2006 was decreed exparte on 1.11.2014. Then defendants (present appellants) moved application under Order 9 Rule 13 CPC, misc. case no. 38 of 2014 for restoration of the original suit. Said restoration application was supported with application under Section 5 of the Limitation for condonation of delay in filing the appeal, in which it was written that defendants were informed on 13.12.2014 by appellants about the judgment dated 1.11.2014, then they moved restoration application on 17.12.2014. The restoration application, misc. case no. 38 of 2014 was dismissed on 31.3.2015. Then those defendants had filed memorandum of first appeal alongwith application under Section 5 of Limitation Act for condonation of delay in filing the same, which was registered as misc. case no. 87 of 2015 on 4.4.2015.
After affording opportunity of hearing, the Additional District Judge, Court No. 6 Bareilly had dismissed the misc. case no. 87 of 2015 and restoration application with finding that even after knowledge of ex parte decree on 13.12.2014, the delay in filing the memorandum of first appeal was caused and that delay of 98 days was not properly explained with sufficient reasons and day to day delay was also not explained. Against this judgment of 23.01.2016 of lower appellate court rejecting the delay condonation application, present second appeal has been preferred.
A perusal of the impugned order dated 23.01.2016 reveals that lower appellate court had become technical and strictly dealt with application of delay condonation (misc. case no. 87 of 2015) for considering the grounds mentioned in Section 5 of Limitation Act. This contention of appellant side is not unacceptable at this stage that grounds of Section 14 of Limitation Act should also have been considered because delay in question was caused from 17.12.2014 to 31.03.2015 when restoration application before trial court was pending. Whether this ground relating to Section 14 of Limitation Act should have been considered by lower appellate court or not, should be considered by this Court. Therefore this appeal is admitted.
Following substantial question of law is framed.
1. Whether the impugned order dated 23.1.2016 passed by first appellate court without considering the period spent during pendency of restoration application, misc. case no. 34 of 2014 before the trial court, is erroneous and perverse ? If so, its effect ?
Lower court's record is not being summoned because certified copy of the relevant record may be filed by the parties before hearing.
List this case on 10th May, 2016 for hearing.
Order Date :- 4.4.2016 Sanjeev