ORDER

1. Present petition is filed assailing the order dated 12.7.2021 passed in Case No.411/20-21/Appeal by Additional Commissioner, Gwalior, Division Gwalior, by which the appeal filed by the petitioners was dismissed on account of being time barred.

2. The facts in brief to decide the present petition are that an application for partition in respect to the land in question bearing Survey Nos. 272, 273, 275, 276, 735, 754, 755, 22, 28, 47, 55 situated at Village Ravar, Circle Morar, District Gwalior was filed by the respondents before Naib Tehsildar, Uteela. Tahsildar vide order dated 31.12.2018 allowed the application and ordered for partition. Against the order of Tahsildar, petitioners filed an appeal before the S.D.O (Revenue), Jhansi Road, Gwalior, District Gwalior, which was dismissed vide order dated 19.8.2019. Against the order of the S.D.O., appeal was filed before the Additional Commissioner, Gwalior Division, Gwalior on 29.6.2020 along with an application under section 5 of Limitation Act, which was also dismissed by the Additional Commissioner vide order impugned and the appeal was also dismissed as being time barred.

3. Learned counsel for the petitioners argued that the order impugned is perverse and is against the settled principles of law. He has further argued that the petitioners are villagers and their counsel Shri N.D. Sharma, who was appearing before the S.D.O., ensured them that their personal presence is not required before the Courts and he would inform the petitioners when the order is passed in the appeal. However, petitioners' counsel Shri Sharma fell seriously ill and on account of illness, he died on 25.1.2020 and could not inform the petitioners about the order passed by the S.D.O. Learned counsel for the petitioners further argued that the Additional Commissioner has not considered the above circumstance and committed grave error in rejecting the application under section 5 of Limitation Act as well as the appeal filed by the petitioners vide impugned order and the same deserves to be set aside.

4. On the other hand, learned counsel for the respondents argued that the impugned order is in accordance with law and the petitioners should not be given benefit of his non-action and malafide. He has further argued that the petitioners had knowledge about the proceedings pending before the Courts below and due to their negligence and inaction, they did not try to get the information about the proceedings. Hence, prays to dismiss this petition.

5. Heard learned counsel for the rival parties and perused the available record.

6. A bare perusal of the record shows that the petitioners had filed application Annexure P-5 mentioning the ground as described herein before. The application is supported by the affidavit of petitioner Umashankar Sharma. There is nothing on record to show that the said affidavit was countered by the affidavit of any of the respondents. Therefore, the ground stated in the application in respect to the delay cannot be disbelieved upon. The reasons for delay was explained as the counsel for the petitioners Shri N.D. Sharma was seriously ill and died on account of his illness. The counsel had assured the petitioners that he will intimate the results of the proceedings pending before the S.D.O., however, he could not intimate the same to the petitioners on account of his illness and death. It is well settled that the Court should have liberal approach and decide the case or litigation on merits not on technicalities.

7. Learned counsel for the respondents cited the case of Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors., [Civil Appeal No.7696/2021 passed on 16 December, 2021] and prays to dismiss the petitoin. The apex Court in the aforesaid citation has held that while deciding the application under section 5 of Limitation Act, the Court should consider that there should not be lack of bonafides, inaction or dilatory tactics on the part of the applicant. However, in the present case, in