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2003 DIGILAW 838 (PNJ)

Prem Arora v. Food Corporation Of India

2003-05-29

VINEY MITTAL

body2003
Judgment Viney Mittal, J. 1. The plaintiff is the petitioner before this Court. 2. The plaintiff is aggrieved against the order dated September 11, 2001 passed by the learned Additional District Judge, Ferozepur, whereby his appeal against the judgment and decree dated February 2, 2000 passed by the learned Civil Judge (Senior Division), Ferozepur has been dismissed as barred by limitation. 3. The detailed facts need not be noticed at this stage. Suffice it to notice that a suit for declaration was filed by the plaintiff challenging the order dated April 2, 1996 passed by defendant No. 2, the Senior Regional Manager (Punjab), Food Corporation of India, whereby a penalty was imposed upon him. 4. The learned trial Court dismissed the suit filed by the plaintiff. The matter was taken up in appeal by him before the learned first appellant Court. The aforesaid appeal was barred by 74 days of limitation. 5. The plaintiff filed an application under Section 5 of the Limitation Act for seeking the condonation of the aforesaid delay. The matter was contested by the defendant-respondents. The learned Additional District Judge vide its order dated September 11, 2001 declined to condone the delay and as such, dismissed the appeal as barred by limitation. 6. Now the plaintiff is in revision before this Court. 7. At the outset, Mr. Ravinder Chopra, learned senior counsel appearing for the petitioner, has submitted that in view of the law laid down in Shiv Shakati Co-op. Housing Society, Nagpur v. Swaraj Developers and Ors., J.T. 2003(4) S.C. 255, the present petition under Section 115 of the Code of Civil Procedure is not maintainable and as such, he has requested that the petition may be treated as a petition under Article 227 of the Constitution of India. 8. Keeping in view the facts and circumstances of the case and also the request made by the learned counsel for the petitioner, the present petition is treated to be a petition filed under Article 227 of the Constitution of India. 9. I have heard the learned counsel for the parties and with their assistance have also gone through the record of the case. 10. It is not disputed that the appeal filed by the plaintiff before the learned first appellate Court was barred by limitation. 9. I have heard the learned counsel for the parties and with their assistance have also gone through the record of the case. 10. It is not disputed that the appeal filed by the plaintiff before the learned first appellate Court was barred by limitation. However, he had filed an application for condonation of delay showing sufficient cause for not filing the appeal within the limitation. The applicant had maintained that in fact, he stood transferred to Makhu, which was at a distance of 55 kilometres from Ferozepur and as such had no means of knowing about the fact of the case being decided by the learned Civil Judge (Senior Division), Ferozepur. He had further maintained that his counsel had not informed him about the dismissal of the suit and as such, the appeal could not be filed within the limitation. 11. In my considered view, the learned first appellate Court has adopted hyper-technical approach in dismissing the appeal filed by the plaintiff. It is well settled that the Courts of law are meant for dispensing the justice between the parties. It is quite strange that the Food Corporation of India, which is an instrumentality of the State has chosen to oppose the aforesaid request made by the plaintiff. The matter should have been contested on merits alone. A party has no vested right to perpetuate injustice. In this view of the matter, the order dated September 11, 2001 passed by the learned Additional District Judge, Ferozepur is set aside and the Civil Appeal No. 54 of 18,3.2000 filed by the plaintiff is restored back to its original number. The matter is remitted back to the learned Additional District Judge, Ferozepur for re-deciding the same on merits in accordance with law. The delay in filing the above said appeal is condoned. 12. The parties, through their counsel, have been directed to appear before the learned Addittonal District Judge, Ferozepur on July 29, 2003. Disposed of accordingly.