The court emphasized a liberal and justice-oriented approach in considering applications for condonation of delay, rejecting hyper-technical standards that undermine substantive rights.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. The instant appeal has been preferred under Section 100 of the Code of Civil Procedure challenging a judgment and decree dated 26.08.2016 passed by the learned Civil Judge, Sivasagar in Title appeal No. 26/2016 whereby the application for condonation of delay in preferring the said appeal has been dismissed. The appeal was preferred against the initial judgment and decree dated 16.11.2015 passed by the learned Munsiff No. 1, Sivasagar in TS No. 77/2010. The appellant was the defendant in the said suit.

2. The TS No. 77/2010 was instituted by the present respondent as plaintiff for declaration that the defendant has no right to transfer the parental dwelling house and land to strangers. It was the stand of the appellant/defendant that the property, which he was seeking to transfer, was not the parental property. Be that as it may, the suit was decreed in favour of the plaintiff by the judgment and decree dated 16.11.2015.

3. The appellant herein had preferred an appeal before the learned Civil Judge, Sivasagar in Title Appeal No. 26/2016. The said appeal however being barred by limitation, an application was filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 31 days. The learned Civil Judge, Sivasagar however, vide the impugned order dated 26.08.2016 had rejected the application for condonation of delay and consequently the Title Appeal was also dismissed. It is the legality and validity of the said order which is the subject matter of challenge in this appeal.

4. I have heard Shri B. Baruah, learned counsel for the appellant whereas the sole respondent is represented by Shri S. Biswas, learned counsel. The records of the Trial Court have also been requisitioned and have been perused.

5. Shri Baruah, the learned counsel for the appellant has submitted that the learned First Appellate Court had taken a hyper technical approach in considering the application for condonation of delay. Though sufficient reasons were assigned justifying such delay, the same was not taken in the proper perspective and though the delay was of only 31 days, the same was not condoned leading to consequent dismissal of the appeal. It is submitted that the learned First Appellate Court had ignored the settled principles of law governing the adjudication process of a delay-condonation petition which requires a pragmatic and justice oriented approach. He further submits that because of the impugned order, the appellant has been deprived of his substantive right to have a fair adjudication at the appellate stage.

6. Shri S. Biswas, learned counsel for the respondent has however submitted that the impugned order dated 26.08.2016 has cited reasons for disallowing the application for condonation of delay and the reasons being cogent, no interference may be made. The learned counsel however fairly concedes that the delay is not an inordinate one.

7. At the outset, this Court would like to clarify that dismissal of an appeal which is a consequence of rejection of an accompanying application filed for condonation of delay is held to be a decision rendered on the merits of the appeal, as has been clarified by the Hon'ble Supreme Court in the case of Shyam Sundar Sarma Vs. Pannalal Jaiswal & Ors. 2004 INSC 637 : (2005) 1 SCC 436. In that view of the matter, there is no issue at all in preferring the present appeal which is the prescribed approach as per the settled position of law.

8. This Court has however noticed that while admitting the appeal vide order dated 05.05.2017, two substantial questions of law were framed which is reproduced as hereunder:

“1. Whether the learned court below was correct in holding the present appellant to be a member of an undivided family and referring the suit property as undivided property on the face of the materials on record that the appellant and the respondents are residing separately in separate residences?

2. Whether the findings of the court below that the suit is hit under