JUDGMENT Sunil Ambwani, J.—Heard Sri R. K. Srivastava for petitioner and Sri S. K. Pandey for respondents. 2. This writ petition arises out of orders passed by Additional Civil Judge (Junior Division), Saharanpur in Misc. Case No. 4A/2000 rejecting petitioner’s application to set aside ex parte decree dated 10.1.2000 in Original Suit No. 215 of 1989 between Mukkha v. General Manager, U. P. State Sugar Corporation, Saharanpur and others, and the order of District Judge, Saharanpur dated 29.4.2002 in Misc. Civil Appeal No. 39 of 2002 dismissing the appeal against the order of the trial court. 3. Brief facts, giving rise to this writ petition, are that the plaintiff filed an Original Suit No. 215/1989 for dispossession of defendants from suit land in Chak No. 136, Gata No. 252. It was alleged that the defendant forcibly entered and started digging on 10.11.1989 and that on 16.3.1990 they constructed 6 feet wall, and fitted angle iron and barbed wire over the wall. The plaintiffs claimed that the defendant Sugar Mill is continuing in wrongful possession, and also claimed damages. 4. A written statement was filed by the defendant. The trial court fixed the matter on 12.1.1998 for disposal of Commissioner’s report. The defendant remained absent on that date, and thereafter, inspite of information sent to counsel for the defendant, Sri Basant Singh to appear on 12.2.1998. No one appeared on that date. The suit was decreed ex parte on 20.5.1998. The defendants filed an application on 13.1.2000 for setting aside ex parte decree along with an application for codonation of delay. The application was filed after about twenty months with the explanation that Sri S. T. Khan, who was looking after the case for the defendant-Corporation had suffered a heart attack. He could not come to the Court and was not aware of the subsequent proceedings. A medical certificate was filed in support of the explanation. 5. The trial court found that the medical certificate was of the year 1999 ; the counsel for the defendant was given information after which several dates were fixed but no one appeared on behalf of defendant. The trial court did not accept the explanation for delay as well as the absence on the dates fixed in the matter and rejected the application. The trial court did not accept the explanation for delay as well as the absence on the dates fixed in the matter and rejected the application. The Appellate Court has found that the medical certificates relate to the month of March, 1999, and held that the findings arrived at by the trial court were not perverse to call for any interference, and consequently rejected the Appeal. 6. Sri R. K. Srivastava, counsel for petitioner states that the Corporation had set up a valid defence in the written statement. It is stated in paragraph 17 of the written statement that the U. P. State Cement Corporation is a body corporate, and has not been impleaded as party respondents. The entire land towards west of Khasra No. 252 of Gaon Sabha Bidwai was acquired and that a boundary wall has been constructed on the western dol, and on the eastern dol of Gaon Sabha Bidwai of Khasra No. 252. The boundary wall towards north and south were constructed. The constructions towards western side were left out for which foundation was dug and now the entire boundary wall has been constructed. In paragraph 18, it was denied that any part of Khasra No. 252 was included in the land covered by the boundary wall. The extension has been made on the land acquired for the Lord Krishna Sugar Mill of the Corporation. 7. The written statement goes to show that the defendant had a triable case. In the application for setting aside ex parte decree supported by application for condonation of delay, it was stated that the Court had fixed 21.1.1998 for objections on the survey report. On 21.1.1998, the Court directed the plaintiffs to inform the defendant’s counsel of the next date fixed on 12.2.1998. The counsel Sri Basant Singh was not given any information and that he could not inform the next date to the defendants. On 12.2.1998 not only the report was confirmed ex parte, a date was fixed for ex parte hearing on 20.5.1998. In the meantime Sri S. T. Khan, who was looking after the case for Corporation suffered a heart attack and was under treatment at Saharanpur and thereafter at Lucknow. He could not obtain further information of the case. On 12.2.1998 not only the report was confirmed ex parte, a date was fixed for ex parte hearing on 20.5.1998. In the meantime Sri S. T. Khan, who was looking after the case for Corporation suffered a heart attack and was under treatment at Saharanpur and thereafter at Lucknow. He could not obtain further information of the case. The defendant came to know about the ex parte decree on 10.1.2000, when the plaintiff came to the establishment of the defendant along with Court Amin for removing the constructions. The file was thereafter inspected and an application with condonation of delay was filed on 12.1.2000. 8. In M. K. Prasad v. P. Arumugam, 2001 (3) AWC 2395 (SC) : (2001) 6 SCC 176 , the Supreme Court held that the expression ‘sufficient cause’ in Section 5 of the Limitation Act must receive liberal construction so as to advance substantial justice, and that generally delays are to be condoned in the interest of justice, unless gross negligence, and deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. The law of limitation has been enacted to serve the interest of justice and not to defeat it. The Supreme Court followed its earlier decision in N. Balakrishnan v. M. Krishnamurthy, 1999 (1) AWC 15 (SC) : (1998) 7 SCC 123 , in observing that the acceptability of explanation for the delay is the sole criterion and that length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay. However, in such a case the Court should also keep in mind the litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. It was also observed in para 9 in N. Balakrishnan’s case that the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. In M. K. Prasad’s case, the defendant came to know about the decree passed in 1997 only when he received the notice of execution proceedings. The application for setting aside ex parte decree which was rejected on the ground of long delay of 554 days. The revision was dismissed by the High Court. In M. K. Prasad’s case, the defendant came to know about the decree passed in 1997 only when he received the notice of execution proceedings. The application for setting aside ex parte decree which was rejected on the ground of long delay of 554 days. The revision was dismissed by the High Court. The Supreme Court found that the defendant should have been more vigilant, but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property conceded to be valuable. It was held that while deciding application for setting aside ex parte decree the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. The inconvenience caused to the respondents for delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. 9. In the present case, the Corporation took a defence that the disputed land was acquired, and is not part of Khasra No. 252. Northern and southern wall enclosing the acquired land was constructed and that the Corporation constructed the western wall without encroaching upon the plaintiffs’ land. In this matter the survey Commissioner’s report could have established whether there was any encroachment on the spot. The defence was required to be considered, and that valuable property which was claimed to be acquired, was involved in the matter. The defendant had offered reasonably bona fide explanation for the absence on the date fixed and the delay in filing the application. The trial court erred in law and in exercise of its jurisdiction in rejecting the application only on the ground that the counsel for the defendant was informed, but was not present on that date and that the medical certificates were of the year 1999. The fact whether defendant’s counsel was informed was denied in the affidavit supporting the delay condonation application. There was no reason to disbelieve the medical certificates. The fact that the officer looking after the case had suffered a heart attack and could not pursue the matter, was not denied. In the circumstances, I find that both the trial court as well as the Appellate Court committed gross error in law, in rejecting the restoration application. There was no reason to disbelieve the medical certificates. The fact that the officer looking after the case had suffered a heart attack and could not pursue the matter, was not denied. In the circumstances, I find that both the trial court as well as the Appellate Court committed gross error in law, in rejecting the restoration application. The plaintiff, however, must have incurred expenses in execution proceedings, and that in the facts and circumstances, I find that costs of Rs. 10,000 will serve the interest of justice. 10. The writ petition is allowed. The impugned orders dated 1.3.2002 passed by Civil Judge (Junior Division), Saharanpur in Misc. Case No. 4A/2000 and order dated 29.4.2002 passed by District Judge, Saharanpur in the Misc. Civil Appeal No. 39/2002 are set aside. The petitioner’s application for condonation of delay and setting aside the ex parte decree stand allowed, subject to payment of exemplary cost of Rs. 10,000 to be paid by the defendants-Corporation to the plaintiffs by depositing the amount in trial court within six weeks from delivery of this judgment. In case the costs are not deposited in trial court within the time fixed, the ex parte decree passed against petitioner shall stand revived. The plaintiff shall be entitled to withdraw the costs.