SIDDARAMU Vs. MADAPPA

JUDGEMENT

(1.) This appeal is filed calling in question the judgment dated 23.11.2018 in R.A.No.22/2015 on the file of the Senior Civil Judge, Maddur, whereby the appellate Court has set aside the judgment and decree dated 01.10.2007 in O.S.No.232/2006 on the file of the Additional Civil Judge (Jr. Dn.) & JMFC., Maddur. The appellate Court has remanded the suit to the trail Court for fresh trial with a direction to provide sufficient opportunities to both the parties to lead further evidence, and with a further direction to dispose of the suit expeditiously.

(2.) The appeal in R.A.No.22/2015 was belated by 2859 days delay, and as such, the appeal was accompanied by an application under Section 5 of the Limitation Act, 1963. The appellate Court recorded the respective evidence on this application for condonation of delay, and by the impugned judgment the appellate Court allowed the application condoning the delay while simultaneously remanding the suit for fresh consideration as aforesaid.

(3.) The grievance of the appellants, as canvassed by the learned counsel for the appellants, before this Court is both as regards condonation of delay and the appeal being taken up simultaneously for disposal on merits. The learned counsel for the appellants submits that the delay is entirely unjustified and not properly explained. Nevertheless, the appellate Court has condoned the delay. Insofar as the appeal being taken up simultaneously for consideration on merits, the learned counsel for the appellants submits that the appellants is not heard on the merits. The appellants are heard only on the application for condonation of delay. The learned counsel submits that the appellate Court, unless the application for condonation of delay was allowed, could not have proceeded to hear appeal under Order XLI Rule 11 of CPC. The learned counsel relies upon Order XLI Rule 3-A(1) of CPC to buttress his submission that the appellate Court could have taken up the appeal for consideration on merits only after the application for condonation of delay was favourably considered.