The court emphasized the discretion to condone delay in filing an appeal and the requirement to consider the circumstances and sufficient cause shown by the appellant.

1. The unsuccessful plaintiff-appellant has impugned the judgement and decree of the first appellate Court whereby his appeal was dismissed on the ground that the same was filed beyond limitation in this regular second appeal.

2. The facts:-

The plaintiff-appellant (hereinafter the plaintiff) and defendant-respondent No. 2 (hereinafter defendant No. 2) are real brothers, that their third brother Lal Chand died on 1/12/1973, that defendant No. 1/respondent No. 1 (hereinafter defendant No. 1), son of defendant No. 2, claimed that he was the adopted son by Lal Chand deceased, that the plaintiff did not admit the factum of adoption and impugned the same in the civil suit and sought a declaration that he and his brother, defendant No. 2, were entitled to the estate of Lal Chand deceased in equal shares.

3 The suit was contested by the defendants, inter alia, on the ground that defendant No. 1 was validly adopted by the deceased under a registered adoption deed dated Nov. 26, 1973:

4. The trial Judge held that defendant No. 1 was validly adopted by Lal Chand deceased and dismissed the suit filed by the plaintiff. The plaintiff challenged the correctness of the judgement and decree of the trial Judge in first appeal before the first appellate Court.

5. The first appellate Court did not go into the merits of the case since it found that the appeal was barred by time by one day. It was of the opinion that since no application for condonation of delay under Sec. 5 of the Limitation Act was moved by the plaintiff there was no escape from the conclusion that the appeal had to be dismissed being barred by time.

6. Indisputably, the trial Judge rendered the judgement and decree on Sept. 15, 1977. Application for supply of certified copies of the judgement and decree of the trial court was moved on the same day. These were ready for delivery on Sept. 23, 1977, but were delivered to the plaintiff en Sept. 27, 1977. The first appellate Court found that the time requisite for obtaining the certified copies within the meaning of Sec. 12 of the Limitation Act was from Sept. 15, 1977 to Sept. 23, 1977 and not from Sept. 15, 1977 to Sept. 27 1977 as claimed by the plaintiff. It found that the appeal ought to have been filed on Oct. 24, 1977 and the same was filed on Oct. 25, 1977 and was thus barred by time by one day. It did not appreciate that even an oral prayer could be made for condonation of delay if sufficient cause was made out by the plaintiff. On the facts of the instant case, it was a fit case where the first appellate Court should have exercised its discretion and condoned the delay in belated filing of the appeal. It did not appreciate that when the application for supply of certified copies of the judgement and decree of the trial court was filed by the plaintiff, no date for delivery of the copies was mentioned on the receipt issued by the copying agency after entertaining the application. The plaintiff could not visualise that the judgement and decree would be ready for delivery on Sept. 23, 1977. After preparation of copies of the judgement and decree by the copying agency, no intimation was sent to the plaintiff that the same were ready for delivery. On these proved facts, the plaintiff could legitimately ask the Court to exercise its discretion and condone the delay in belated filing of the appeal by one day. The first appellate Court refused to exercise the discretion wholly on unjustified grounds. It was not aware that even an oral prayer for condonation of delay could be made if sufficient cause was otherwise shown, which had been shown in the instant case. The first appellate Court would have been well advised to condone the delay in belated filing of the appeal by compensating the other party with costs. Under these circumstances, I condone the delay in belated filing of the appeal on payment of Rs. 500.00 as conditional costs.

7. For the reasons stated above, the appeal succeeds, the judgement and decree of the firs