Ishan Chandra Das, J. - (1.) IN the instant revisional application the petitioner assailed the order (being order No. 05 dated 11.06.2015) wherein the learned court below rejected the prayer for condonation of delay in filing the appeal against the judgement and decree passed by learned Civil Judge Senior Division, Port Blair in TS No. 06 of 2005. The instant revisional application has a long chequered history which is noted below: - - "The suit for partition was filed at the instance of the petitioner being TS No. 06 of 2005 before the learned Civil Judge Senior Division, Port Blair and the said suit was decreed on contest against the opposite party in preliminary form declaring rights of the parties in respect of half share each in the disputed property and they were asked to make amicable partition within three months from the date of the order, failing which either of the parties was given liberty to pray for partition by metes and bounds through court. Since the parties failed to effect partition by amicable agreement in terms of the decree, a commissioner was appointed to effect such partition and he submitted his report, but that report was not accepted by learned Trial Court, who again appointed the Sub Divisional Officer as a partition Commissioner whose report was submitted showing valuation of shares of the parties (as described in para 6 of the revisional application) and that report is accepted and a direction was given to the parties to take possession as per final decree within ninety days and in default of that an execution case was filed and the same is pending. It is also revealed from the order impugned that the final decree was modified at the instance of the present respondent, but the petitioner herein being aggrieved by such modification approached the learned Trial Court for review of the order of the final decree, but the same was turned down which led him to file the revisional application before Hon'ble High Court and the same met with identical fate. However, in the said order of the High Court a liberty was given to the petitioner to prefer an appeal against the final decree."
(2.) LEARNED counsel for the petitioner at the outset pointed out that the petitioner could not appear before the court of learned District Judge in due time due to the fact that the petitioner was awfully busy for the treatment of his wife who was suffering from cancer and finally expired on 4th June 2014 for which his client could not file the appeal being TA No. 26 of 2014 in time, which was filed on 25.11.2015 with an application for condonation of delay in filing such appeal in terms of section 5 of the Limitation Act, rejection of which led the petitioner to take recourse to this Court by filing this revisional application assailing the impugned order. Now, the point for consideration is whether learned District Judge, Port Blair is justified in rejecting the prayer of the petitioner to admit his appeal being TA 26 of 2014 as the same not being filed within the prescribed period of limitation.
(3.) MR . K.M.B. Jayapal, learned counsel for the petitioner submitted that learned District Judge, Port Blair while dealing with the application for condonation of delay in filing appeal entered into merit of the case which is not permissible in law. In support of his contention he relied on a decision of the Hon'ble Apex court in State of Gujrat v. Sayed Mohd. Bakir El Edross reported in : AIR 1981 Supreme Court 1921 urged that while dealing with prayer of condonation of delay, the court should not be influenced by merit of the appeal. Relying on full bench decision of the Hon'ble Gujrat High Court in Municipal Corporation of Ahmedabad through the Municipal Commissioner v. Voltas Limited and etc. reported in : AIR 1995 Gujrat 29 and urged that 'the courts are required to take the liberal view while considering the facts constituting the sufficiency of the cause on the basis of which condonation of delay is sought.';