S.P.PANDEY, j. - (1.) THIS is a revision petition preferred against the judgment and order dated 22-4-1994 passed by the learned Additional Commissioner, Jhansi Division, Jhansi arising out of an order dated 9-11-1977 passed by the learned trial Court in a suit under Section 176 of the UPZA and LR Act (hereinafter referred to as the Act).
(2.) BRIEFLY stated, the facts of the case are that the plaintiff, Kamla instituted a suit under Section 176 of the Act with the prayer that 1/3 share of the plaintiff over the land in suit as detailed at the foot of the plaint, be partitioned and possession of the same be delivered to him. The learned trial Court by means of its order dated 9-11-1977 declared 1/3 share of the plaintiff over the land in suit and on 9-12-1977 passed the final decree accordingly. Aggrieved by this order, an appeal was preferred. During the pendency of this appeal, on an application under Section 5 of the Indian Limitation Act moved on behalf of Srinam s/o Kamla praying for condonation of delay caused in filing the appeal and deciding the appeal on merits, the learned lower appellate Court allowed the aforesaid application and condoned the delay in filing the appeal by means of its order dated 22-4-1994. Hence this revision petition. I have heard the learned Counsel for the parties and have also perused the records on file. For the revisionist, it was contended that the learned lower appellate Court has exercised its jurisdiction illegally and with material irregularity in condoning the delay of 13 years by a non-speaking order; that satisfactory explanation has not been furnished by opposite party No. 1 and even then the learned lower appellate Court has allowed the application for condonation of delay under Section 5 of the Indian Limitation Act vide its order dated 22-4-1994 and as such is liable to be set aside; that while granting the benefit of Section 5 of the Limitation Act, the learned lower appellate Court has not recorded a finding for condoning the delay and as such the aforesaid order clearly suffers from material irregularity. In support of his contentions, he has cited the case laws reported in 1992 RD 218 and 443 and 1987 RD 390. In reply, the learned Counsel for the opposite party urged that the learned lower appellate Court has correctly condoned the delay in filing the appeal as the limitation would be counted from the date of final decree prepared in the case concerned and as such the aforementioned order passed by the learned lower appellate Court be maintained. In support of his contention he has cited the case laws reported in 1999 AWC 15 (SC) and 18 (SC).
(3.) I have closely and carefully considered the contentions raised by the learned Counsel for the parties and have also gone through the relevant records on file. On a close examination of the relevant record it is crystal clear that the date of preliminary decree passed by the learned trial Court is 9-11-1977 and final decree is 4-4-1990 and as such considering the entire facts and circumstances of the instant case, the learned lower appellate Court has correctly condoned the delay in filing the aforesaid appeal. In order to promote the ends of substantiate natural justice and to facilitate its course, it would be quite just and proper to sustain the aforementioned order dated 22-4-1994 passed by the learned lower appellate Court as the parties shall avail of the reasonable and due opportunity of hearing before it and as such neither of the parties should feel aggrieved by the aforesaid impugned order.;