JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. M.U. Mahmud, learned counsel for the appellants. Also heard Mr. N. Ahmed, learned counsel for the respondents.

2. The present appeal is filed assailing the judgment and order dated 21.02.2014, passed by the learned First Appellate Court in T.A. No. 66/2013, whereby the learned Appellate Court had dismissed the appeal by refusing to condone the delay of 39 days thereby dismissing an application under Section 5 of the Limitation Act, 1963 on the ground that the appellant has failed to show sufficient cause which prevented the appellant from filing the appeal within the prescribed period of time.

3. The present appeal was admitted by this court on the following substantial question of law:

“(i) Whether on the basis of Exhibit 1 and Exhibit 2 sale deed, the learned courts below ought to have declared the title of the plaintiff over the suit land?

(ii) Whether the learned first appellate court committed error in refusing to condone the delay in exercise of power under Section 5 of the Limitation Act read with Order XLI Rule 3A of the Code of Civil Procedure. The appellant is permitted to raise any other substantial question of law at the time of hearing.”

4. For consideration of the aforesaid substantial question of law, now, let this court to look into the background fact of the present litigation, which are as follows:

(i) The appellant as plaintiff preferred a suit being T.S. No. 39/2010 before the learned court of Munsiff at Bilasipara seeking declaration of right, title and interest and correction of record and permanent injunction. Such declaration was sought over the B schedule land. Such declaration was sought on the basis of a sale deed being Deed No. 5026 dated 15.09.1975 and a declaration was also sought for that the said deed is valid and having force in law.

(ii) The defendants contested the suit by filing written statement and denied the execution of sale deed by their predecessor in interest and also contested that the predecessor in interest of the defendants had never handed over possession of the schedule land. Both parties led evidence and exhibited documents.

(iii) Thereafter, the learned trial court below dismissed the suit basically on the ground that the plaintiffs could not produce original sale deed Ext. 2 without proper explanation and that the name of the defendants were recorded in the revenue record long back.

(iv) Thereafter, being aggrieved, the plaintiffs preferred an appeal under Section 96 of the CPC before the learned Civil Judge, Dhubri. As there was delay of 39 days in preferring the aforesaid appeal, the appellants along with the appeal preferred an application under Section 5 of the Limitation Act praying for condonation of the delay for filing the connected appeal, which was registered as petition No. 760 dated 17.08.2013.

(v) In the aforesaid petition, the appellants pleaded the following to explain the delay that had prevented the appellant from filing the appeal within the prescribed period of limitation:

(A) That the plaintiffs/appellants requested his engaged Advocate to obtain a certified copy of the judgment and sought advice for filing an appeal who in turn advised that three months are the prescribed period to file a first appeal. Therefore, there was some delay in applying certified copy.

(B) The appellant No. 1 who used to look after the case and used to take steps suddenly felt ill and was bed ridden from 13.06.2013 to 14.08.2013 and could not move.

(C) After being recovered, he contacted the Advocate at Dhubri on 14.08.2013 requesting him to file an appeal. In the meantime certified copy was received on 14.06.2013.

(D) Therefore, the counsel informed that the period for filing an appeal is one month and not three months.

(E) Accordingly, it was contended that due to wrong advice and prolong illness, the appeal could not be filed within the time prescribed.

5. Though, no formal objection was filed against the aforesaid application, however the responde