Point of Law: It is well-established that delay beyond the limitation period can be condoned if “sufficient cause” is shown by the party, especially if the party has not acted negligently or without bona-fides.

JUDGMENT :

PRATHIBA M. SINGH, J.

1. This hearing has been done through video conferencing.

2. The impugned judgment dated 21st May, 2019 in R.C.A. No. 50/2017 titled Jatinder Pal Singh vs. Tejinder Singh, is under challenge before this Court by way of a second appeal wherein the first Appellate Court had refused to entertain the appeal on account of it being barred by delay. The Appellants-Plaintiffs (hereinafter “Plaintiffs”) had sought condonation of delay of 49 days in filing the first appeal, which was not acceded to by the Appellate Court.

3. The said first appeal was against the order of the Trial Court dated 2nd December, 2016 in Suit No. 59/2015 titled Jitender Pal Singh and Another vs. Tejinder Singh and Another. A brief background of the matter is that a suit for rendition of accounts and permanent injunction was filed by the Plaintiffs herein, against the Respondents-Defendants (hereinafter “Defendants”). In the said suit, an application under Order VII Rule 11 CPC was filed initially by the Defendants. However, the said application was withdrawn as recorded in the order dated 3rd August, 2016. Thereafter, an application was filed for amendment of the written statement under Order VI Rule 17 CPC by counsel for Defendant No. 1. On the said application, arguments were heard on 1st December, 2016 and the following order was passed:

“Present: Ld. Counsel Sh. Mehul Gupta for the plaintiff.

Ld. Counsel Sh. Tamim Qadir for the defendant no. 2.

An application for amendment/change in the amendment application has been filed by the Ld. Counsel for the defendant no. 2.

Perusal of the application shows that it was merely a typographical error that is sought to be rectified by the Ld. Counsel for the defendant no. 2.

Accordingly, the request is acceded to and the change in the title of the said application is allowed.

Ld. Counsel for the plaintiff who is present in court also apprised about the change sought to be made.

Arguments heard on the application under order VI Rule 17 CPC.

Put up for order on 02.12.2016 and thereafter for further proceedings, AD and framing of issues on 28.01.2017.”

4. Curiously, however, vide order dated 2nd December, 2016, the application under Order VII Rule 11 CPC, which was already withdrawn, was allowed by the Trial Court and the plaint was itself rejected. The said order reads as under:

“Present: None

Vide separate order of even date, the application under Order VII Rule 11 CPC of the defendant no. 1 stands allowed and the plaint is rejected.

File be consigned to Record Room.”

xxx xxx xxx

“14. In light of the discussion above, the plaint is rejected. In arriving at the above said conclusion, the oral submissions made by the parties have also been taken into consideration.

15. Once the plaint is rejected under Order VII Rule 11 CPC, it would be an exercise in futility to pass any order on the application under Order VI Rule 17 CPC as the same has become infructuous.

16. Plaint is rejected.”

5. The knowledge of this order dated 2nd December, 2016, is stated to have been acquired by the Plaintiffs on 28th January, 2017, which was the date on which issues were to be framed, as previously recorded on 1st December, 2016. It is on the said date i.e. on 28th January, 2017, that the Plaintiffs discovered that the plaint itself has been rejected. Accordingly, the appeal was presented before the Appellate Court on 17th/18th February, 2017. However, considering the fact that the order which was under appeal was of 2nd December, 2016, the Appellate Court has refused to condone the delay. Hence, this second appeal has been filed before this Court.

6. Mr. Gupta, ld. counsel appearing for the Plaintiffs, submits that the Plaintiffs could not have imagined that when the arguments were to be heard on the application under Order VI Rule 17 CPC, the plaint would be rejected under Order VII Rule 11 CPC instead. He submits that since the application under Order VII Rule 11 CPC was withdrawn earlier, the order dated 2nd December, 2016, was