ORAL JUDGMENT

The present appeal is accompanied with I.A.

No.2/2022 to condone the delay of 576 days in preferring the appeal. The grounds urged in the affidavit accompanying I.A. No.2/2022 is at para No.5 which is culled out as under:

“5. I state that after the judgment was passed by the 1st Appellate Court due to ongoing pandemic I could not keep in contact with my advocate and was under the impression that appeal may take some time for disposal. And after coming to know about the disposal of the case I have immediately contact my advocate and took all the necessary documents and preferred this appeal. As I could not keep the track of my case due to personal and on-going pandemic there is some delay in filing this appeal which is neither intentional nor deliberate.”

2. The reasons stated to condone the delay of 576 days in preferring the appeal is that the judgment was passed by the First Appellate Court during the Covid-19 Pandemic and he could not contact his counsel and he was under the impression that the appeal may take some time for disposal and after coming to know about the disposal of the case, immediately he contacted his counsel, made necessary arrangements and delay is caused due to the said reasons.

3. Suit is one for partition and separate possession, the present appellant was arrayed as defendant No.6 before the trial Court. Admittedly, defendant No.6 was placed exparte. The trial Court based on the oral and documentary evidence held that the plaintiff is entitled for 1/4th share in the suit property and also entitled for possession. Defendant No.6 preferred appeal before the First Appellate Court with a delay of six years three months fourteen days. Along with the regular appeal, application in I.A.1 was filed seeking to condone the said delay of six years three months fourteen days in filing the regular appeal. Reasons indicated was that he was placed exparte and he had no knowledge about passing of the judgment and decree and only he came to know recently and hence, filed an appeal. Respondent Nos.3 to 5 filed objections to the said application inter alia contending that the appellant had knowledge about the judgment and decree passed in O.S. No.48/2006, as in the final decree proceedings initiated in FDP. No.6/2011, the defendant No.6 was arrayed as respondent No.6 and he appeared along with respondent Nos.1, 4 and 5, hence, sought for dismissal of the application filed to condone the delay of six years three months fourteen days. The First Appellate Court while considering the reasons assigned in the affidavit accompanying I.A.1 arrived at a conclusion that in FDP.No.6/2011 the present appellant was arrayed as respondent No.6 and he was served with a notice personally, on perusal of the order sheet the First Appellate Court held that the present appellant had filed objections to I.A. No.1 before the final decree Court. The appellant personally served in the FDP. No.6/2011 on 06.08.2011 and the R.A. No.17/2015 was preferred only on 02.05.2015 and observing that the appellant had knowledge about the preliminary decree in the year 2011 itself and no satisfactory explanation is offered by the appellant to show sufficient cause to condone the delay in filing the appeal has dismissed I.A. No.1 filed under Section 5 of the Limitation Act and consequently dismissed the regular appeal as well. Against which, the present appeal is filed by defendant No.6 with a delay of 576 days in preferring the appeal.

4. The question that falls for consideration before this Court is that “whether in the facts and circumstances of the reasons indicated above, the appellant has made out sufficient ground to condone the inordinate delay before this court as well as the appellate court ?”

5. The law of limitation finds its routes in the legal maxim “Interest reipublicae ut sit fanis litum” which means that in the interest of the state as whole there should be a limit to litigation and “vigilantibus non dormeientibus jura subveniunt” whi