JUDGMENT

Ram Prasanna Sharma, J. - This second appeal is preferred against the judgment dated 16-3-2018 (Annexure A/1) passed by the Second Additional Judge to the Court of First Additional District Judge, Durg (CG) in Civil Appeal No. 28-A/2016 arising out judgment and decree dated 29-4-2015 (Annexure A/2) passed by the First Civil Judge, Class-II, Durg (CG) in Civil Suit No. 15-A/13 wherein the said First Appellate Court dismissed the appeal after dismissing the application filed by the appellants under Section 5 of the Limitation Act, 1963 (for short, "the Act, 1963") for condonation of delay in filing the appeal.

2. Respondent No.1/plaintiff filed a suit for declaration of title, possession and injunction against the appellants/defendants No.1 to 5. The subject matter of the suit was land situated at Tatiband, Patwari Halka No.103, Raipur, bearing Survey No.27/2 and 28/2 area 0.040 hectares and 0.162 hectares, Suvey No. 27/5, 30/4 and 35/3 total area 0.091 hectares, thus the total area 0.293 hectares, the land bearing survey No.28/4 area 2200 sq.ft situated at village Khapri, Patwari Halka No.11, Tahsil and District Durg, survey No.28/4 area 3300 sq.ft situated at village Khapri. Survey No. 1463/1 area 0.82 hectares, survey No.1463/2 area 2.80 hectares total area 3.62 hectares situated at village Nanpatti, Patwari Halka No. 10, Tahsil and District Durg, Survey No.67 area 8000 sq.ft. Situated at Motilalnagar, Old Bhilai.

3. It is pleaded on behalf of the respondent No.1 that all the properties were granted to him in the family partition between the family members but when he tried to get his name mutated in revenue records as well as in the records of Registrar, Companies and Municipal Corporation, appellants started raising dispute and denied the factum of partition, that is why suit was filed.

4. As per the appellants, it is appalling to note that neither they were duly represented nor their interest was safeguarded by the so called counsel. The trial Court proceeded with the suit even though notices were not duly issued by the trial court nor summons were served upon them. The trial court registered the civil suit No.15-A/13 on 15-6-2013 and directed issuance of summons vide order dated 25-6-2013 and the matter was directed to be listed for appearance of the appellants on 18-7-2013. However, without issuance of notice to the appellants, Shri Avinash Chandra Tiwari, Advocate appeared before the trial Court on his own accord without any instructions from the appellants on 4-7-2013. The date of listing before the trial court was preponed by filing an application for urgent hearing and thereafter proceedings were carried forward by the lawyers Shri Satish Das and Shri Avinash Chandra Tiwari in connivance with each other. Appellants did not receive any summons nor they had any knowledge regarding pendency of the suit. When appellant No.2 Sandeep Agrawal visited the court of Naib Tahsildar, Durg on 23- 5-2016 for getting the revenue records of Khasra Nos. 1463/1 and 1463/2 which are in the ownership of appellant No.2, the clerk of the said court informed him regarding impugned judgment and decree dated 29-4-2015 which has been procured by respondent No.1 and he filed an application for mutation on the basis of said judgment/decree. Appellant No.2 being appalled by such gross fraud played by respondent No.1/plaintiff, immediately filed an application for procuring certified copy of the record along with impugned judgment/decree passed by the trial Court which was received on 28-5-2016 and thereafter he immediately filed an appeal before the lower appellate court. The said appeal was accompanied by an application filed under Section 5 of the Act, 1963. The lower appellate court dismissed the said application and consequently dismissed the appeal and has non-suited the appeal on hyper technical ground of limitation. Despite graphical explanation for delay in filing the appeal, the lower appellate court has adopted hyper technical