1. Heard finally with the consent of the learned Counsel for the respective parties.

2. Admitted on the following substantial question of law:

Whether in the facts and circumstances the first Appellate Court erred by refusing to hear first appeal on merits by refusing to condone delay?

My answer is in the affirmative for the reasons as stated below.

3. This appeal arises from order dt. 8.11.2012 passed by the learned Principal District Judge, Wardha whereby the learned first Appellate Judge refused to condone delay on the ground of absence of reasonable explanation for the delay caused to prefer the First Appeal. It appears that present appellants are, in fact, legal heirs of appellant before the first Appellate Court namely Smt. Shewantabai Kashinath Kumbhare, who is referred to in the impugned order and who is no more living. Most of the reasoning given by the first Appellate Judge was about age of applicant Shewantabai as to whether she was aged 67 years or 82 years and also certificate regarding medical treatment of Shewantabai as to whether she was suffering from hypertension, anaemia with general debility due to old age and whether she was advised bed rest for the period concerned and about her presence and attendance in the Court on 6.12.2011 and 31.12.2011. Ultimately, the learned first Appellate Judge, instead of hearing the matter on merits, held that long and inordinate delay of 394 days excluding the period of appeal i.e. of 360 days has occurred. The concluding part that there was no reasonable ground for delay itself is answered by unfortunate death of Shewantabai as this second appeal is now preferred by her legal heirs on account of her death.

4. In support of the contention that the First Appeal should have been entertained and heard on merits on behalf of the appellants, reference is made to the ruling in the case of Shyam Sunder Sarma .vs. Pannalal Jaiswal and Others reported in 2005 (1) Mh.L.J. 340. The three Judges Bench of Hon'ble Supreme Court observed in para nos. 9 and 10 about the legal position in this regard making reference to earlier judicial precedents in M/s.Mela Ram and Sons vs. The Commissioner of Income Tax, Punjab reported in 1956 SCR 166, wherein the Apex Court held that the appeal presented out of time is an appeal and order dismissing it as time barred is one passed in appeal. Reference is also made to the ruling in SheodanSingh .vs. Daryao Kunwar reported in AIR 1966 SC 1332 rendered by four Judges of the Apex Court by which it was held that where decision is given on merits by the trial Court and matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal, when it confirms decision of the trial Court on merits, itself amounts to appeal being heard and finally decided on merits whatever be the ground for dismissal of appeal. The Apex Court also gave clarification in respect of Full Bench decision of Kerala High Court in Thambivs. Mathew reported in 1987 (2) KLT 848 holding that the appeal presented out of time was nevertheless appeal in the eye of law for all the purposes and the order dismissing the appeal was a decree that could be the subject matter of a Second Appeal. The Second Appeal was, therefore, held as competent.

5. The learned Counsel for the respondents made a reference to the case of The Commissioner, Hubli Dharwad Municipal Corporation vs. Shrishail and Others reported in AIR 2004 Karnataka 75. The learned Counsel argued that this was a decision by the Full Bench of the Karnataka High Court in which order of dismissal of First Appeal as barred by limitation was treated as not a decree and it was held that the Second Appeal against such order is not maintainable. Even if formal decree is drawn as, according to the Full Bench of Karnataka High Court, proper course is to file revision under Section 115. This appears to be a contrary view to the views taken in earlier cases refer