An appeal barred by limitation cannot be allowed without an application for condonation of delay under Section 5 of the Limitation Act, and the judgment and decree passed without such an application are bad in law.

( 1 ) THIS is an appeal filed by the plaintiffs/appellants under Section 100 of the Code of Civil Procedure against the judgment and decree dated 9-10-1993 passed by IX Additional Judge to the Court of District Judge, Jabalpur, in Civil Appeal No. 12-A/92, arising out of judgment and decree dated 16-1-1992, passed by I Civil Judge Class II, Jabalpur, in Civil Suit No. 75a/91.

( 2 ) THIS appeal was admitted for finals hearing by this Court on the following substantial question of law, vide order dated 9-5-1994;-"whether the appeal before the lower appellate Court was barred by limitation and whether the findings of the lower appellate Court is vitiated for not recording the reasons for reversing the finding of the trial Court. "

( 3 ) IT may be readily seen that in this substantial question of law is in two parts. The first part relates to limitation. The second part relates to merits of the case. The appeal can be disposed of on the question of limitation alone and, therefore, it is not necessary to decide the question on merits.

( 4 ) THE appellant succeeded in the trial Court and obtained a decree under Section 12 (1) (f) of M. P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act', for short ). The trial Court also found that the appellants had proved the grounds under Section 12 (1) (a) of the Act. The respondent filed an appeal which was barred by ten days. It is not in dispute that the memorandum of appeal was not accompanied by an application under Section 5 of Limitation Act in contravention of Order XLI, Rule 3a of the Code of Civil Procedure. The respondent did not comply with the aforesaid rule even after filing the appeal and the appeal was admitted without deciding question of limitation at the preliminary stage prior to admission. The appellant received notice of the appeal. On 11-8-1992 it was pointed out to the Court that the appeal is barred by time. The Court ordered that this point be decide as preliminary point but the appellants were not present. The case was adjourned to 8-9-1992. The Presiding Judge was transferred and the case was then adjourned to 30-9-1992, 6-1-1992, 5-12-1992, 7-1-1993, 17-3-1993, 30-3-1993, and 12-4-1993. The Presiding Judge had taken leave of absence. The next date was 22-4-1993. The learned Judge, without reading the previous order sheet fixed the case for final arguments on 26-6-1994. The order sheet dated 22-4-1993 reads as follows:- (Matter in vernacular Omitted - Ed.)The case was then adjourned from time to time to 26-6-1993, 14-7-1993, 16-8-1993, 18-8-1993, 8-9-1993, and 27-9-1993. On 27-9-1993,the respondent Sardarilal Khatri (who was appellant before the lower appellate Court) was absent. The appellant No. 5 Dr. Deochand Bhura (who was respondent No. 5 before the lower appellate Court) was present. The case was closed after accepting written arguments from appellant No. 5, and was fixed for judgment on 9-10-1993, the counsel for respondent in the lower Court appeared lateron. The lower appellate Court directed him to file written arguments or to argue the case orally on 28-9-1993, otherwise it was stated that judgment shall be pronounced on 9-10-1993. On 28-9-1993 the counsel for the respondent alone argued the appeal. It is clear that no notice was given to appellant No. 5, and, therefore, he did not appear on 28-9-1993. The Court should have given notice of hearing to appellant No. 5because he was entitled to know what was being argued by counsel for respondent before the lower appellate Court. The appeal was allowed on merits without noticing the facts that it was barred by limitation by ten days.

( 5 ) IT is strange that the counsel for the respondent who must have been made aware of the fact that the appeal was barred by time, did not make any application under Section 5 of Limitation Act, if there was any ground to condone the delay. Nor did he bring it to the notice of the Court that his appeal was barred by time. Unfortunately, the