ORDER

1. This second appeal has been filed against the order dated 15.7.1999 passed by learned First Appellate Court at Rewa in Civil Appeal No.63A/1998 whereby, the appeal against the judgment and decree passed by learned Civil Judge, Class-I, Mauganj DistrictRewa in Civil Suit No.322-A/91 whereby, the learned Civil Judge dismissed the suit of plaintiffs-Punyalal Singh and others on the basis of lack of jurisdiction. The learned First Appellate Court dismissed the appeal as being time barred by one month twenty five days.

2. The grounds raised in this appeal are that the Appellate Court ought to have held that the appellant/plaintiffs were prevented by sufficient cause and the delay in filing the case was bonafide. The Court below after giving a specific finding that from the perusal of order dated 9.8.1996, it is apparent that none of the parties were present in the Court and in the absence of any finding to show that Shri H.L. Tripathi- Advocate had informed the appellant No.1 about the judgment dated 9.8.1996, the application for condonation of delay should have been allowed.

3. Learned counsel for other party support the order of learned First Appellate Court.

4. This appeal was admitted on the following substantial questions of law on 7.4.2000.

i) Whether the Court below is right in holding that there was variance between pleading and proof regarding the allegations made by the appellant-Punyalal Singh against his counsel Shri H.L. Tripathi?

ii) Whether the Court below failed to see that under the facts and circumstances of the case, the appellant-Punyalal Singh was bound to examine his counsel Shri H.L. Tripathi who had allegedly dealt with his case in a negligent manner?

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

6. During the course of argument, learned counsel for appellant has placed reliance on the following citations:

1) Poonam and Ors. v. Harish Kumar and Anr. AIR 2012 SC (Supp) 733 in which, the Hon’ble Supreme Court in paragraph 15 has held that under section 5 of Limitation Act, 1963 application for condonation of delay - sufficient cause - delay of 63 days in filing appeal – Appellants were three ladies one of them was pursuing case and she fell sick – Therefore, she was not in position to pursue legal remedy with due diligence as a result of which appeal was filed with a delay of 63 days – Delay of 63 days was not delay for long period and there had been sufficient explanation for delay – Hence delay was liable to be condoned.

2) Hanmawa and Ors. v. Pettiya and Ors. AIR 2008 SC (Supp) 1040 in which, the Hon’ble Supreme Court has held in paragraphs 3 & 4 that under section 5 of Limitation Act, 1963 and section 100 of CPC condonation of delay – Appellant illiterate villagers going place to place for work – Getting knowledge of order passed against them only when they reached their village – Appeal filed immediately on knowing that they should file appeal – Delay stands sufficiently explained – Dismissal of second appeal on ground of limitation – Improper.

3) N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 in which, the Hon’ble Supreme Court has held in paragraph 9 to 14 that section 5 of Limitation Act – Condonation of delay – Discretion of Court – How to exercise – Guidelines stated – Words “sufficient cause” should be construed liberally – Acceptability of explanation for the delay is the sole criterion, length of delay not relevant – In absence of anything showing mala fide or deliberate delay as a dilatory tactic, Court should normally condone the delay – However, while doing so court should also keep in mind the consequent litigation expenses to be incurred by the opposite party and should compensate him accordingly – Where a Court condones delay in positive exercise of discretion, superior Court and more particularly the revisional Court should not normally disturb the same – But where request for condonation of delay is refused, it would be open to the superior Court to come to it