Deficiencies in filing appeals can be remedied; rejection for lack of affidavit is not always fatal.

1.The substantial question of law formulated and to be answered by this Court in the defendants - second appeal is as under: -

'Whether the lower appellate Court was justified in dismissing the appeal on the ground of limitation holding that no affidavit has been filed under O.41 R.3A(1) of the Code of Civil Procedure '

[For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court]

2. In a suit filed by respondent No. 1 / plaintiff, the trial Court by its judgment & decree dated 28.01.2015 passed in Civil Suit No. 14 - A / 2010, decreed suit granting declaration of title, partition, possession and permanent injunction in favour of the respondent No. 1 / plaintiff.

3. Feeling aggrieved & dissatisfied with the judgment & decree of the trial Court, appellants / defendants preferred first appeal before the first appellate Court on 29.04.2015 along with application for condonation of delay in preferring the appeal as the appeal was admittedly barred by 51 days, which was duly supported by affidavit.

4. The first appellate Court, by its impugned order dated 22.12.2015, dismissed the appeal holding that appellant / plaintiff has not filed any affidavit as required under sub R.1 of R.3(A) of the R.41 of the CPC.

5. Questioning the legality, propriety and correctness of the order passed by the learned first appellate Court, second appeal under S.100 of the CPC has been filed by the appellants / defendants and the substantial question of law has been framed and incorporated in the opening paragraph of the judgment.

6. Shri Raghvendra Pradhan, learned counsel appearing for the appellants / defendants would submit that the first appellate Court is absolutely unjustified in dismissing the appeal holding that no affidavit in terms of sub R.1 of R.3(A) of R.41 of the CPC has been filed ignoring the fact that application under S.5 of the Limitation Act is duly supported by affidavit and, as such, the order passed by the learned first appellate court is absolutely perverse and contrary to the record and, therefore, the same is liable to be set aside.

7. Mr. Shivendu Pandya, counsel for the respondent No. 1 / plaintiff would support the judgment & decree of the first appellate court and would submit that no such affidavit as required under sub R.1 of R.3(A) of R.41 of the CPC was filed by the respondent No. 1 / plaintiff and, therefore, the appeal has rightly been dismissed by the first appellate Court.

8. I have heard learned counsel appearing for the parties and also considered their rival submissions made therein and also gone through the record with utmost circumspection.

9. At this stage, it would be advantageous to notice the provisions of O.41 R.3(A)(1) of the CPC, which reads as under: -

'O.41 R.3A(1) of the CPC: Application for condonation of delay. - (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such period.'

10. A careful perusal of the aforesaid provision would show that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such period.

11. In the matter of State of M. P. and another v. Pradeep Kum