1. This second appeal has been filed at the instance of the defendant as the learned first appellate Court has allowed the appeal of the plaintiff and decreed the suit by the impugned judgment and decree.

2. No exhaustive statements of facts are necessary for the disposal of this appeal. Suffice it to say that the plaintiff filed an appeal before the learned first appellate Court, which was barred by time and eventually an application to condone the delay was filed. The appeal was decided by the learned first appellate Court without deciding the application- under section 5 of the Indian Limitation Act, 1963 (in short 'the Act').

3. This second appeal was admitted on 8.2.2002 on the following substantial questions of law:

iii) Has the decision of first appeal, which was beyond time, without condoning the delay, been without jurisdiction and non-est in view of Chhitu v. Mathuralal [AIR 1981 MP 13]?"

"ii) Has the first appellate Court below erred in exempting the respondent Masjid Committee from operation of M.P. Accommodation Control Act, 1961, though no notification was issued by the State Government exempting such property of trust from operation of the Act before institution of suit, in view of Santosh Kumar v. lama Masjid Committee, Sagar [1998 (1) MPJR III] and like?"

4. It has been submitted by Shri Mukhtar Ahmed, learned counsel for the appellant that it was imperative on the part of the first appellate Court to have decided the application under section 5 of the Indian Limitation Act, 1963 and then only it could have decided the appeal on its own merit. In support of his contention learned counsel has placed reliance on the decision of this Court in Chhitu v. Mathuralal [AIR 1981 MP 13].

5. By placing reliance on the decision of this Court in the case of Santosh Kumar v. lama Masjid Committee, Sagar [1998 (1) MPJR III], it has been contended that the provisions of the M.P. Accommodation Control Act, 1961, are applicable and, therefore, the decision of the learned first appellate Court decreeing the suit of plaintiff is vitiated since it is contrary to the law.

6. On the other hand Shri Pranay Gupta, learned counsel for the respondent/plaintiff argued in support of the impugned judgment but fairly contended that the application under section 5 of the Act was not decided.

7. Having heard learned counsel for the parties I am of the view that this appeal is liable to be allowed and the matter is required to be sent back to the learned first appellate Court.

Regarding substantial question of law No.1

8. On going through the record of the learned first appellate Court it is gathered that the appeal was filed beyond the prescribed period of limitation, and eventually an application under section 5 of the Act was filed which was marked as IA 1. On going through the order-sheets of learned appellate Court it is gathered that from time to time the matter was adjourned to hear the said application but the same was not heard though in the some order-sheets it has been mentioned that the said application shall be considered in the final judgment. On going through the impugned judgment it is gathered that the application under section 5 of the Act, marked as I.A. No. 1 before the learned first appellate Court, was not at all decided. In this view of the matter, the learned first appellate Court was not having any jurisdiction to decide the appeal on merit without condoning the delay. In this context I may profitably rely on the decision of Chhitu (supra) of this Court and para 9 of the decision may be taken note of.

9. The substantial question of law No.1 is thus answered that "without condoning the delay in filing the appeal, the learned first appellate Court was not having any jurisdiction to decide the appeal on merit and allow the same by decreeing the suit of the plaintiff'.

10. Since the application has not been decided and the matter is being sent back to the learned first appellate Court to decide the application under section 5