1 2025:CGHC:23382 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 493 of 2025 1. Rohit Kumar S/o Dallu Kaushik Aged About 63 Years R/o Village Dhatura P.O. Korbi Tahsil Pali, District Korba Chhattisgarh 2. Bhagirathi Kaushik S/o Dallu Kaushik Aged About 59 Years R/o Village Dhatura P.O. Korbi Tahsil Pali, District Korba Chhattisgarh 3. Rohini Bai D/o Dallu Kaushik Aged About 61 Years W/o Thanu Ram R/o Village Kasaipali P.O. Jawali, Tahsil Katghora, District Korba Chhattisgarh 4. Dasods Bai D/o Dallu Kaushik Aged About 57 Years W/o Brijpal Kashyap, R/o Village Dadar Mangamar (Chaitma), Tahsil Pali, District Korba Chhattisgarh 5. Chand Kumar Kashyap S/o Umed Rao Aged About 21 Years R/o Village Jorjadabri. P/o Khamharia, P.O. Khamharia District Korba Chhattisgarh 6. Shiv Kumar Kashyap S/o Umed Rao Aged About 21 Years R/o Village Jorhadabri, P/o Khamharia, P.O. Khamharia District Korba Chhattisgarh 7. Shiv Kumari Kashyap S/o Umed Rao Aged About 23 Years R/o Village Jorhadabri, P/o Khamharia, P.O. Khamharia District Korba Chhattisgarh ... Petitioners versus 1. Manmohan S/o Dallu Kaushik Aged About 66 Years R/o Village Dhatura P.O. Korbi Tahsil Pali District Korba Chhattisgarh 2. Chanda Bai Kaushik W/o Manmohan Aged About 65 Years R/o Village Dhatura P.O. Korba Tahsil Pali, District Korba Chhattisgarh 3. Narmad Bai Rathore W/o Firanlal Rathore Aged About 76 Years R/o Village Dhatura P.O. Korbi Tahsil Pali, District Korba Chhattisgarh 4. Dilharan Rathore S/o Firanlal Rathore Aged About 49 Years R/o Village Dhatura P.O. Korbi Tahsil Pali District Korba Chhattisgarh 5. Chhattisgarh State Through The District Collector District Korba Chhattisgarh 2 ... Respondent(s) For Petitioner(s) : Dr. Jitendra Kishore Mehta, Advocate. For Respondent(s) : None (Hon’ble Mr. Justice Narendra Kumar Vyas) Order on Board 12/06/2025 1. The petitioners have filed the instant writ petition under Article 227 of the Constitution of India being aggrieved with the order dated 27-1-2023 (Annexure P/2) passed by the Civil Judge, Class-II, Pali by which an application filed under Order 39 Rule 1 & 2 of the Code of Civil Procedure for temporary injunction was rejected and also against the order dated 8-1-2025 (Annexuree P/1) passed by Additional Distinct Judge Katghora District Korba by which the Civil Appeal filed under Section 104, Order 43 Rule 1 (d) along with an application for condonation of delay under Section 5 of the Limitation Act has been rejected on the ground of delay and latches. 2. The brief facts reflected from the record are that the plaintiff has filed a civil suit before the Civil Judge Class-2, Pali for declaration of title, permanent injunction, partition of ancestral property and contended that the suit property is an ancestral property and by committing fraud the defendants have recorded their names in their share. 3. The petitioners have also filed an application under Order 39 Rule 1 & 2 CPC with a prayer to restrain the defendants from executing the sale deed of portion of suit property described in the plaint. The said application was rejected on 27-1-2023 by the learned Civil Judge, Class II Pali by recording its finding that the ingredients for grant of injunction are not available in favour of the petitioners/plaintiffs. Being aggrieved with this order the petitioners have preferred Miscellaneous Civil Appeal before the court of Additional District 3 Judge, Katghora, District Korba on 7-9-2023. The said appeal was dismissed on the ground of delay and latches by the appellate Court after recording its finding that it cannot be said that since petitioners along with their counsel were regularly appearing before the learned trial Court, therefore, it cannot be said that the law of limitation regarding filing of appeal is not known to them. It has also recorded its finding that there is delay of six months in filing of the appeal and no justifiable explanation has been given by the petitioners. Being aggrieved with this order, the petitioners have have preferred this writ petition under Article 227 of the Constitution of India. 4. Learned counsel for the petitioners would submit that the learned appellate Court has committed illegality in dismissing the appeal on the ground of delay and latches by adopting hyper technical view as it is well settled principle of law that the Courts should be liberal and sympathetic al while considering the delay and unless the right which has been accrued because of delay is adversely affected. Thus, he would pray for allowing the petition. 5. I have heard learned counsel for the petitioner and perused the record. 6. Considering the fact that the appeal preferred by the petitioners is delayed by six months but the learned appellate Court while rejecting the application for condonation of delay, assigned the reason which is not in accordance with law. It is well settled position of law that while condoning the delay, the court, should be very liberal and should not take hyper technical view while condoning the delay and no each day delay has to be explained and only justifiable reason or sufficient cause has to be assigned. It is also well settled position of law that if any right of the party has been adversely affected then only the delay may not be condoned. In the present case no right has been accrued to any party. The suit is at the initial stage and rights and liabilities of the parties have to be ascertained, therefore, I am of the view that the learned appellate Court has committed illegality in dismissing the appeal. Accordingly 4 the impugned order dated 08.01.2025 is liable to be quashed and it is quashed and delay in preferring the appeal is condoned. 7. The appellate Court is directed to decided the Misc. Appeal on merits after hearing the parties in accordance with law. It is made clear that since this Court has passed the order in absence of respondents, respondents shall be at liberty to move an application for reconsideration of the order, if any exigency so arises. 8. The petitioners are directed to appear before the appellate Court on 06-08- 2025 and thereafter notice will be issued to the defendants for their presence before the said court and thereafter the matter be decided, in accordance with law. It is made clear that this Court has not expressed any opinion on the merits and the appellate Court will decide the appeal on its own merits. 9. With the aforesaid observation and direction, the writ petition is allowed. Sd/- (Narenedra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.07.28 18:14:44 +0530