The court established that while a liberal approach to condoning delay is necessary, persistent negligence and lack of sufficient cause can justify dismissal of appeals.

JUDGMENT :

SUDESH BANSAL, J.

1. Heard counsel for appellants on the application u/s. 5 of the Limitation Act, seeking condonation of delay of 361 days in filing present civil second appeal.

2. It has inter alia been stated that in the application that the present second appeal has been filed against the final order dated 13.01.2022 passed by Additional District Judge, Nainwa, District Bundi, dismissing appellants’ first appeal on the ground of limitation. It has been stated that relevant papers to file the second appeal were handed over to the then Advocate Sh. Sanjay Sharma, but later on, he passed away, and that fact could not come to the knowledge of appellants. When they inquired about filing of second appeal and came to know the fact of death of their counsel, they engaged another counsel and filed this second appeal. The application u/s. 5 of the Limitation Act, is supported with the affidavit.

3. The Hon’ble Supreme Court in case of N. Balakrishnan v. M. Krishnamurthy , (1998) 7 SCC 123 has held that length of delay is not material but the reason of delay must be seen and word “sufficient cause” should be construed liberally.

In case of Dr. Yashwantrao Bhaskarrao Deshmukh v. Raghunath Kisan Saindane , (2022) 16 SCC 572 , the Hon’ble Supreme Court condoned the delay of 650 days in filing second appeal, taking a lenient view in given facts and circumstances, where the appellant was contesting the litigation for 17 years to contest a civil suit for specific performance and when the suit was decreed by the first Appellate Court, he filed second appeal, which was dismissed on the ground of delay of 650 days. The Apex Court held that delay in filing second appeal, occurred due to lack of knowledge of decision of First Appeal.

4. Considering the reasons assigned by the appellants, seeking to condone the delay, and in view of the fact that there appears no malafides on the part of appellants nor any deliberate & willful negligence appears on the part of appellants, for not filling civil second appeal within time, in the interest of justice, this Court deems it just and proper to condoned the delay. Accordingly, the application u/s 5 of Limitation Act stands allowed. Let second appeal be considered on merits.

5. Heard counsel for appellants on the second appeal.

6. Succinctly stated facts of case, as culled out from the record are that appellants’ father Sh. Devi Lal instituted a civil suit in the year 1992 claiming his right and possession over the suit property of agricultural land of Khasra No.2112 measuring 6 biswa situated at Village Bansi stating inter alia that same was purchased by him from one Rugha 25 years ago against sale consideration of Rs.80/- and after his death, his adopted son Chotya (defendant No.1) confirmed sale of suit property in his favour by executing a document dated 28.01.1981. It was averred that later on, Chotya (defendant No.1) executed a sale deed dated 19.05.1992 in favour of defendant No.2-Ghasi Lal, though the plaintiff-Devi Lal was in actual possession over the suit property, hence, he filed a civil suit praying to cancel/ declare the sale deed dated 19.05.1992 as null & void, so also to direct defendant No.1 to execute a registered sale deed, in his favour.

7. It appears that in the civil suit, defendants despite service did not turn up, hence suit was decided ex-parte, vide judgment dated 07.04.1994. Plaintiff’s evidence was recorded. The trial Court being Court of Munsif & Judicial Magistrate First Class, Nainwa, District Bundi, on appreciation of plaintiff’s evidence, affirmed the plaintiff’s possession over the property in question as lawful, and held that same was sold to him by Rugha, and sale in favour of