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2009 DIGILAW 1034 (PAT)

Tara Devi W/o Kisundeo Mahto v. Bhikshu Mahto S/o Ramdeo Mahto

2009-08-06

RAVI RANJAN

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel for the opposite party no. 1. None appears on behalf of the opposite party no. 2. It is jointly submitted on behalf of the petitioner as well as the appearing opposite party that the opposite party no.2 did not contest the suit as he was debarred from filing the written statement and as such this civil revision can be disposed of even in his absence. 2. I now proceed to consider the civil revision on its merit. Defendant-appellant- petitioner is aggrieved by the order dated 30.5.2006 passed by the District Judge. Sitamarhi in Title Appeal No. 22 of 2006, whereby he has dismissed the appeal aforesaid on the ground of delay of about 193 days in filing of the same. 3. Learned counsel for the petitioner submitted that a petition for condoning the delay in filing the aforesaid title appeal was filed by the appellant, which has been brought on record by opposite party no. 1 and is appended in the counter affidavit filed by them as Annexure-B. It has been stated therein that due to laches on the part of the pairvikar, the petitioner, who was contesting the suit earlier and examined many witnesses, could not later on participate in the proceeding and judgment and decree has been passed without hearing her. It is also stated that after getting the knowledge of aforesaid dismissal and upon getting the certified copy of the judgment and decree, the title appeal concerned has been filed. 4. Learned counsel for the petitioner placed reliance upon a decision rendered by Supreme Court in N. Balakrishnan vs. Krishnamurthy, A.I.R. 1998 (SC) page 3222. In that case a petition was filed under Order IX Rule 13 for setting aside ex-parte decree, explanation of the petitioner was found to be satisfactory and the limitation was condoned. However, the High Court in its revisional jurisdiction set aside the same. The Apex Court had held therein that in every case of delay there could be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. The relevant passage from the aforesaid decision of the Apex Court is quoted as under: "13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. The relevant passage from the aforesaid decision of the Apex Court is quoted as under: "13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss. 14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial Court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advcocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial Court but on a condition that appellant shall pay a sum of Rupees Ten thousand to the respondent (or deposit it in this Court) within one month from this date." 5. Learned counsel for opposite party no. 1 submitted that there had been deliberate and intentional laches on part of the petitioner which will be manifest from the averments made in the title appeal aforesaid as well as execution case concerned filed for execution of decree of the concerned title suit. 6. Learned counsel for opposite party no. 1 submitted that there had been deliberate and intentional laches on part of the petitioner which will be manifest from the averments made in the title appeal aforesaid as well as execution case concerned filed for execution of decree of the concerned title suit. 6. It is apparent, however, that the view of the Supreme Court in N. Balakrishnan (supra) was that in these types of litigations the proper course of Courts should be to compensate the opposite party. In Raj Kishore Pandey vs. State of Uttar Pradesh and Others, reported in (2009)2 Supreme Court Cases 692 the Apex Court has held that in place of dismissing the case on technicalities as far as possible the approach of Courts should be to decide it on merit. Courts should advance the cause of justice and not the cause of technicalities. 7. In view of the aforesaid, I am of the considered opinion that sufficient cause was shown by the appellant-petitioner for condoning the delay and the appellate court has committed error in dismissing the appeal on ground of delay. It should have condoned the delay and proceeded rather to decide the appeal on its merit. 8. As a result, impugned order dated 30.5.2006 is set aside. The delay in filing of Title Appeal No. 22 of 2006 is condoned and it is directed that the aforesaid title appeal be disposed of on its merit after giving opportunity of hearing to the parties, however, this order will be subject to payment of cost Rs. 5,000/- within two months from today to the concerned respondent in appeal. It is further made clear that this order is being passed in presence of both the parties and thus, the parties should appear within two months from today without waiting for issuance of notice by the appellate court and must cooperate in speedy disposal of the appeal.