Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 982 (PNJ)

Palwinder Kaur v. Gajjan Singh

2001-09-05

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - An ex parte decree that the plaintiffs (now petitioners) are co-sharers in the land in dispute, was passed by Additional Civil Judge (Senior Division), Patti. Aggrieved by the judgment and decree, the defendants-respondents filed an application under Order 9 Rule 13 read with section 151 Civil Procedure Code for setting aside the ex parte decree. During the pendency of the said application, the trial Court stayed the implementation of the decree vide order dated 7th May, 2001 which is under challenge. In addition to this, the trial Court has framed issues arising out of the pleadings of the parties in the application under Order 9 Rule 13 read with section 151 Civil Procedure Code and now the case is fixed for evidence of the defendants. It is this order which has been impugned in this revision petition. 2. The civil revision has not been filed within the prescribed period of limitation. This necessitated the filing of application under section 5 of the Limitation Act (in short the Act). It is averred therein that since they were in possession of the land being legal heirs of the deceased, they were not advised to file the revision. On this assumption, they had not challenged the stay order. 3. I have considered the submissions made by the learned counsel and the cause shown in the application in hand. 4. I hardly find any ground to attribute malafides on the part of the petitioners. They are the persons who are directly affected by the impugned order staying the execution of the decree already passed in their favour. If at an early stage, due to ill advice of someone they had not filed the revision, their revision cannot be thrown on the ground of delay. In construing section 5 of the Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. 5. In exercise of discretion under section 5 of the Limitation Act (in short the Act), the Court should adopt a pragmatic approach, as observed by the Apex Court in Vedabai alias Vaijayanthabai Baburao Patil v. Shantaram Baburao Patil and others, 2001 AIR SCW 2809and others. 5. In exercise of discretion under section 5 of the Limitation Act (in short the Act), the Court should adopt a pragmatic approach, as observed by the Apex Court in Vedabai alias Vaijayanthabai Baburao Patil v. Shantaram Baburao Patil and others, 2001 AIR SCW 2809and others. It is further observed as under : ".......The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression sufficient cause, the principle of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under section 5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression sufficient cause should receive liberal construction, in catena of decisions (See State of West Bengal v. Administrator, Howrah Municipality, (1972)1 S.C.C. 366 : (AIR 1972 SC 749) and Smt. Sanhaya Rani Sarkar v. Smt. Sudha Rani Debi, (1978)2 S.C.C. 116 : (AIR 1978 SC 537)." 6. In M.K. Prasad v. P. Arumugam, 2001 AIR SCW 2810 it has been observed that "in construing section 5. of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section". 7. It is a case where the party had acted on the ill advice of the advocate by not filing revision. Thus, the conduct of the petitioner would not castigate him as an irresponsible litigant. The interest of justice, therefore, demands that he should not be deprived of his right by ousting him from the litigation. The explanation furnished by him appears to be satisfactory. The delay of 28 days in filing the revision is, therefore, condoned. 8. Consequently, the application under section 5 of the Limitation Act is allowed. Civil Revision No. 4623 of 2001 9. The plaintiffs-petitioners are claiming possession of the land in dispute on the basis of the decree in their favour. They are not going to suffer any irreparable loss or injury by the passing of the impugned order. 8. Consequently, the application under section 5 of the Limitation Act is allowed. Civil Revision No. 4623 of 2001 9. The plaintiffs-petitioners are claiming possession of the land in dispute on the basis of the decree in their favour. They are not going to suffer any irreparable loss or injury by the passing of the impugned order. Anyhow, as the trial Court has only fixed the case for evidence of the defendants- respondents, therefore, in my opinion, this revision can be disposed of without issuing notice of motion to the other side, by directing the trial Court to dispose of the application under Order 9 Rule 13 read with section 151 Civil Procedure Code as early as possible, preferably within 4 months from the next date of hearing already fixed before the trial Court. Parties are also directed to assist the Court by producing their evidence within the time frame. In case any of the parties fail to produce evidence by resorting to delaying parties the trial Court will be at liberty to pass necessary order in accordance with law. 10. Copy of the order be given dasti on payment of usual charges. Orders accordingly.