Uttarakhand High Court
Mishra vs Rajendra Kumar' on 6 October, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
SA No. 114 of 2024
Hon'ble Rakesh Thapliyal, J.
1. Mr. Narendra Bali, learned counsel for the
appellant.
2. Mr. Siddhartha Singh, learned counsel for the
respondent.
3. The instant second appeal has been preferred
against the judgment and order dated 15.09.2023
passed by the learned District Judge, Haridwar, in
Miscellaneous Case No. 203 of 2022 'Surendra Kumar
Mishra vs. Rajendra Kumar'.
4. As per the office report there is a delay of 294
days and for the purposes of condonation of delay the
delay condonation application has been filed along
with the affidavit by giving reason that a civil revision
bearing Civil Revision No. 164 of 2023 was filed in
which on 08.11.2023 the notices were issued but since
the revision was not maintainable the revisionist
sought permission to withdraw the revision with the
liberty to file second appeal and such liberty was given
on 10.04.2024 and thereafter due to illness and financial
crises the appellant could not file the appeal and the
delay in preferring the instant second appeal is
bonafide and not deliberate and be condoned.
5. In response to this, Mr. Siddhartha Singh submits
that the reasons as given in the delay condonation
application is not acceptable, however he has not
disputed that earlier the revision was filed, which was
dismissed as withdrawn with a liberty to file a second
appeal.
6. Be that as it may, it is relevant to mention here
that the dispute arising out of the proceeding of O.S.
No. 82 of 2014, which was filed by the
respondent/plaintiff in which the present appellant
filed the counter claim and the suit as well as the
counter claim was rejected by the Trial Court; however,
the First Appellate Court decreed the suit against
which the Second Appeal No. 142 of 2022 has been
preferred, which is also listed today has also been
admitted. The present second appeal is only confined
to the counter claim, which was sought by the
appellant in the suit filed by the respondent/plaintiff,
however, the First Appellate Court dismissed the
appeal since the same was time barred by observing
that only in order to fill up the lacuna the appeal has
been filed belatedly.
7. Since the Second Appeal No. 142 of 2022 is
already admitted by this court, therefore, this court is
of the view for substantial justice when the present
appellant filed counter claim in the suit filed by the
respondent bearing O.S. No. 82 of 2024 the instant
second appeal has to be decided on its own merit and,
therefore, the liberal approach should be taken while
condoning the delay.
8. Accordingly, the delay condonation application
IA No. 1 of 2024 is allowed and the delay is condoned.
9. Heard on admission.
10. Taking into consideration that O.S. No. 82 of 2014
in which the counter claim was filed by the appellant
was decided by the common judgment and thereafter
in the First Appeal the suit was decreed and the instant
second appeal is only confined to the counter claim,
which was also rejected, therefore, this court is of the
view that this appeal has to be admitted.
11. Accordingly, the instant second appeal is
admitted on the following substantial question of law:
i. As to whether learned First Appellate Court wrongly
discarded the settle proposition of law that liberal
approach may be applied while deciding the Delay
Condonation Application, if there exists the valuable
rights of the parties to be decided?
12. Put up this matter for final disposal on 25.11.2025
along with SA No. 142 of 2022.
(Rakesh Thapliyal, J.)
06.10.2025
PR
