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2003 DIGILAW 368 (PNJ)

Lajo Devi v. Smt Om Wati etc.

2003-02-28

ASHUTOSH MOHUNTA

body2003
JUDGMENT Ashutosh Mohunta, J. - The present revision has been filed against the order dated 25.9.02 passed by learned District Judge, Jagadhari, vide which the appeal filed by the petitioner was dismissed on the ground of limitation. 2. A perusal of the facts shows that an appeal was filed before the District Judge, Yamunagar at Jagadhari against the judgment dated 21.2.2000, passed by Civil Judge (Jr. Divn.), Jagadhari. There was a delay of 65 days in filing the appeal. An application was filed with regard to condonation of delay by the petitioner and it was stated therein that the petitioner is an old lady of 65 years who was not keeping a good health. Therefore, the appeal could not be filed in time. However, a certificate of the doctor was also appended along with the application. 3. Mr. Dinarpur, learned counsel for the petitioner contended that a lenient view should have been taken by the appellate Court in the matter of condonation of delay. He had relied on the judgment in Smt. Phullo Devi v. Jagat Ram, 2002(4) RCR 368, where it has been held that : "Sufficient cause should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party - Right of appeal is recognized in all jurisdiction, such a right cannot be defeated by any technicality of law." The aforesaid observations were made on the basis of the decision in Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, 2002(3) SCC 195. 4. On the other hand learned counsel for the respondent states that no sufficient cause has been shown by the petitioner owing to which the delay in filing the appeal could be condoned. The medical certificate is issued by a Registered Medical Petitioner and no record was shown before the appellate Court so as to make out the case for it. 5. After hearing the learned counsel for the parties, I agree with the learned counsel for the petitioner that liberal approach should have been taken by appellate Court while dealing with the application under Section 5 of the Limitations Act. The delay in filing the appeal is only of 65 days. It is not a substantial delay. 5. After hearing the learned counsel for the parties, I agree with the learned counsel for the petitioner that liberal approach should have been taken by appellate Court while dealing with the application under Section 5 of the Limitations Act. The delay in filing the appeal is only of 65 days. It is not a substantial delay. Moreover, in view of the pronouncement in Smt. Phullo Devi case (supra) v. Ram Nath case (supra), the delay in filing the appeal deserves to be condoned. Consequently, I set aside the order dated 25th September, 2002, passed by District Judge, Yamuna Nagar at Jagadhari and direct the appellate Court to hear and decide the appeal on merits. The parties shall appear before the District Judge on 28.3.2003. Revision allowed.