Satish Kumar Mittal, J. - (1.) PLAINTIFF Didar Singh has filed this Regular Second Appeal against the judgment and decree dated 12.4.2002 passed by the Additional District Judge, Ambala, whereby after reversing the finding of the trial court on issue No. 1, his alternative suit for recovery of Rs. 20,000/ - with interest, has been decreed.
(2.) IN this case, the trial court decreed the suit of the plaintiff - appellant for possession of the suit land by way of specific performance of the agreement to sell dated 22.3,1990. Feeling aggrieved against the judgment and decree passed by the, trial, court, defendant No. 3 - Nirmal Singh filed an appeal before the first Appellate Court with an application for condonation of delay as the said appeal was barred by limitation of more than two years. The first Appellate Court, without deciding the said application for condonation of delay, has partly allowed the appeal. The relief of specific performance of the agreement (Ex. P1) has been declined and the alternative suit of the plaintiff -appellant for recovery of Rs. 20,000/ - with interest, has been decreed. Counsel for the appellant argued that the first Appellate Court was having no jurisdiction to entertain and decide the appeal on merits without first deciding the application for condonation of delay. To ascertain the factual position as to whether the said application for condonation of delay was decided by the first Appellate Court or not, the lower court record was requisitioned by this Court on April 30, 2007. The said record has been received. Both the counsel for the parties have inspected the record. I have also perused the record of the first Appellate Court. Undisputedly, the application filed by respondent No. 1 for condonation of delay in filing the appeal was not decided by the first Appellate Court and without deciding such application, the appeal filed by the said respondent was decided on merits and the decree of the trial court was modified while declining the claim of the appellant for specific performance of the agreement (Ex.Pl), Counsel for respondent No. 1 also admits the factual position that the application for condonation of delay in filing the appeal was not decided by the first Appellate Court by passing any order.
(3.) IN view of this admitted factual position, learned Counsel for the appellant submitted that without deciding the application for condonation of delay, the appellate Court was having no jurisdiction to entertain and decide the appeal on merits. According to the learned Counsel, the judgment and decree passed by the first Appellate Court is wholly without jurisdiction.;