A.K. Shrivastava, J:

1. This second appeal has been filed at the instance of the plaintiff whose suit has been dismissed by learned trial Court and the first appeal has also been dismissed by learned first Appellate Court being barred by time by the impugned judgment.

2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a suit for declaration and injunction in respect of the property description whereof has been given in the plaint has been filed by the plaintiff. According to the plaintiff, he is the owner of the suit property and the defendants and its functionaries are interfering in his possession.

3. Learned trial Court dismissed the suit on 20-12-2008 against which an appeal was filed by the appellant before learned first Appellate Court. The appeal was barred by time for 45 days before learned first Appellate Court. An application under section 5 of the Indian Limitation Act was filed praying to condone the delay, but, that application has been dismissed. Eventually, the appeal has also been dismissed as barred by time by learned first Appellate Court.

4. In this manner this second appeal has been filed by the appellant/plaintiff.

5. This Court admitted the second appeal on the following substantial questions of law :

1. Whether learned first Appellate Court erred in substantial error of law in dismissing the application of section 5 of the Indian Limitation Act of plaintiff on the ground that no reason has been assigned by appellant that why he has filed application to obtain certified copy of the judgment and decree after 24 days and not earlier to it?

2. Whether learned first Appellate Court erred in substantial error of law in dismissing the appeal of plaintiff as barred by time although there was sufficient material to condone the delay in filing the appeal?

6. It has been put forth by learned counsel for the appellant/plaintiff that prescribed period of limitation to file first appeal is 30 days and the time spent for obtaining certified copy of the judgment and decree should be excluded. Learned counsel submits that judgment and decree was passed by learned trial Court on 20-12-2008 and thereafter plaintiff/appellant submitted an application to obtain certified copy of the judgment and decree on 13-1-2009 and if that would be the position within 30 days the application to obtain the requisite certified copy of judgment and decree was filed. The learned first Appellate Court erred in substantial error of law in holding that no reasons have been assigned by appellant that why the application to obtain certified copy of the judgment and decree was not filed earlier to 13-1-2009. It has also been put forth by learned counsel that since the appellant had fallen ill and medical certificate has also been filed by him along with the affidavit, in absence of any document in rebuttal that the appellant was not ill, learned first Appellate Court erred in substantial error of law in dismissing the application.

7. On the other hand, Smt. Sheetal Dubey, learned Government Advocate for the State argued in support of the impugned judgment.

8. Shri Pramod Kumar Pandey, learned counsel for the respondent No. 3 - the Chief Municipal Officer, Nagar Palika Parishad, Sidhi also argued in support of the impugned judgment.

9. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

Regarding Substantial Question of Law No. 1

10. Admittedly, the judgment and decree dismissing the suit of the plaintiff was passed by learned trial Court on 20-12-2008 and on going through the impugned judgment of learned first Appellate Court this Court finds that application for obtaining certified copy of judgment and decree was submitted on 13-1-2009 and same was delivered to him on 19-1-2009. According to me, the finding of learned first Appellate Court that no reason has been assigned by plaintiff that why he did not file application earlier to 13-1-2009 is contrary to the law. The prescribed period of limitation to file appeal is 30 days and before expiry of that period the application was submitted by the appellant. In these state of affairs, there is no law as such that plaintiff/appellant was bound to explain that why he did not file the application earlier to 13-1-2009. Admittedly, the application to obtain certified copy of the judgment and decree was submitted prior to the expiry of prescribed period of limitation which is 30 days. Hence, according to me, the order of learned trial Court in this regard is contrary to the law. The substantial question of law No. 1 is, thus, decided in favour of appellant/plaintiff.

Regarding Substantial Question of Law No. 2

11. On bare perusal of the application under section 5 of the Indian Limitation Act filed before learned first Appellate Court this Court finds that the appellant had fallen ill and in this regard specific averment has been made by him in the application as well as in the affidavit which was filed in support of the application. A medical certificate of illness from 16-1-2009 to 2-2-2009 has been filed along with the application. There is no document in rebuttal that plaintiff was not ill and therefore, according to me, the learned first Appellate Court in absence of any document in rebuttal has erred in substantial error of law that medical certificate is a concocted document.

12. Hence, I am of the view that there was sufficient material to condone the delay and the appellant had shown the sufficient cause for not

preferring the appeal within time. The substantial question of law No. 2 is, thus, answered in favour of the appellant. 13. Resultantly, this appeal succeeds and is hereby allowed. Impugned judgment passed by learned first Appellate Court is hereby set aside and the application filed under section 5 of the Limitation Act filed by appellant which is barred by 45 days is hereby allowed and the delay in filing the appeal is hereby condoned. The learned first Appellate Court is hereby directed to decide the appeal on its own merit. This appeal is accordingly allowed with no order as to costs. Appeal allowed.