IMPORTANT POINT
Expression “sufficient cause” within meaning of Section 5 of Limitation Act, 1963 should receive a liberal construction when no ‘mala fide’ imputable to a party, so as to advance substantial justice.

Mehinder Singh Sullar, J. —The contour of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that the civil suit for a decree of mandatory injunction filed by Rajinder Singh son of Sarup Singh appellant/plaintiff (for brevity “the plaintiff”) was dismissed by the trial Court, by means of impugned judgment and decree dated 17.10.2006.

2. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, along with the application for condonation of delay under Section 5 of the Indian Limitation Act (hereinafter to be referred as “the Act”). The first appellate Court dismissed the appeal as time barred as well as on merits, by virtue of impugned judgment and decree dated 11.12.2007.

3. The appellant/plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal.

4. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, the instant appeal deserves to be accepted in this context.

5. As is evident from the record that first appellate Court dismissed the appeal of the plaintiff as time barred and strange enough, at the same time it was dismissed on merits as well. The plaintiff moved an application for condonation of delay under Section 5 of the Act, inter alia pleading that he could not file the appeal within a period of limitation as he was suffering from Typhoid w.e.f. 10.10.2006 to 13.12.2006 and he could not attend the Court on 17.10.2006 when his suit was dismissed by the trial Court. Subsequently, Sh. Anil Kumar, Advocate informed him with regard to the dismissal of his suit and supplied him the copy of judgment on 28.11.2006. Thereafter, he filed the appeal.

6. As is clear from the impugned judgment that the main grounds, which appear to have been weighed with the 1st Appellate Court to dismiss the application of the appellant under Section 5 of the Act, were that his counsel was present at the time of pronouncement of judgment by the trial Court and there was absolutely no medical evidence on the file that the appellant had suffered from Typhoid from 10.10.2006 to 13.12.2006.

7. What is not disputed here is that the application for condonation of delay is duly supported by the affidavit of the plaintiff, in which, he has reiterated that he was suffering from Typhoid from 10.10.2006 to 13.12.2006. Assuming for the sake of argument, if the appellate Court was not satisfied with his affidavit, then, it ought to have granted an opportunity to the plaintiff to produce medical evidence, instead of straightway jumping to dismiss the appeal.

8. The bare perusal of the record would reveal that the trial Court dismissed the suit of plaintiff on 17.10.2006. Application No.743 was moved to obtain certified copy of judgment and decree on 23.11.2006, which was prepared and delivered on 28.11.2006. The plaintiff filed the appeal on 19.12.2006. In this manner, there is only a delay of 27 days in filing the appeal. Therefore, to my mind, since the plaintiff has cogently explained the delay in filing the appeal on account of his illness, so, the 1st appellate Court committed a legal error in summarily rejecting the application condonation of delay and the appeal of the plaintiff in this respect.

9. There is another aspect of the matter, which can be viewed from a different angle. The fundamental jurisprudence and the basic concept of law of limitation is well settled. The Hon’ble Apex Court in cases Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao & Ors., AIR 2002 SC 1201 and The State of West Bengal v. The Administrator, Howrah Municipality & Ors., 1972(1) SCC 366: AIR 1972 SC 749 has reiterated that the expression “sufficient cause” within the meaning of Section 5 of the