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2010 DIGILAW 2994 (ALL)

Ganga Prasad v. District Judge, Lucknow

2010-09-27

ANIL KUMAR

body2010
JUDGMENT Hon'ble Anil Kumar,J. - Heard Sri Harbansh Singh, learned counsel for the petitioner and Sri Rakesh Srivastava, learned Standing Counsel on behalf of the official respondent. 2. By means of present writ petition, the petitioner has challenged the impugned order dated 15.09.010 and 07.09.2010 passed by respondent no. 1(District Judge, Lucknow) by which the revision filed by the contesting respondent has been admitted and delay has been condoned in filing the same respectively. 3. In brief the facts of the present case to the effect are that Sri Ganga Prasad(petitioner) filed a Suit for arrears of rent and ejectment registered as (Ganga Prasad Vs. Sri Ramjan and others) in the Court of Judge, Small Causes Court, Lucknow and vide judgment and order dated 06.05.2010, the same has been allowed. 4. Aggrieved by the same a revision has been filed before the District Judge, Lucknow by the contesting respondent in revision (Ramjan) alongwith application for condonation of delay. 5. After hearing the learned counsel for the parties and gone through the record, the respondent no. 1 by order dated 07.09.2010(Annexure no. 2) condoned the delay and by order dated 15.09.2010(Annexure no. 1) admitted the same, hence the present writ petition has been filed. 6. Learned counsel for the petitioner submits that the impugned action on the part of the respondent no. 1 thereby condoning the delay is illegal and arbitrary as at the time of filing the revision, the contesting respondent had not explained the day to day delay in the affidavit moved by him under Section 5 of Limitation Act as such there is no justification on the part of the respondent no. 1 in condoning the delay, so the order dated 07.09.2010 thereby condoning the delay and the order dated 15.09.2010 admitting the revision are arbitrary in nature and liable to be set aside. 7. I have heard learned counsel for the parties and gone through the record. 8. The facts of the present case does not dispute by the learned counsel for the parties who are present today rather the same are admitted. 9. In the matter of condonation of delay the Apex Court has constantly held that the pragmatic view should be taken. 10. 8. The facts of the present case does not dispute by the learned counsel for the parties who are present today rather the same are admitted. 9. In the matter of condonation of delay the Apex Court has constantly held that the pragmatic view should be taken. 10. In the case of Shakuntala Devi Jain V. Kuntal Kumari the Hon'ble Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay can not be refused to be condoned. 11. In New India Insurance Co. Ltd. V. Smt. Shanti Misra Hon'ble Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The express "sufficient cause" should receive a liberal construction. 12. In O.P. Kathpalia V. Lakhmir Singh the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. 13. In the case of Collector, Land Acquisition V. Mst. Kati Ji and othersheld as follows: "The legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this; when delay is condoned, the highest that can happen is that a cause would he decided on merit after hearing the parties. 3. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this; when delay is condoned, the highest that can happen is that a cause would he decided on merit after hearing the parties. 3. "Every" day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The dectrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by restoring to delay. In fact, he runs a serious risk. 6.It must be grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 14. In Smt. Prabha V. Ram Prakash Kalra the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. 15. In N. Balakrishnan V. M. Krishnamurthy the Apex Court explained the scope of limitation and condonation of delay, observing as under: "The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy." 16. In Vedabai @ Vaijayanatabai Baburao Patil V. Shantaram Baburao Patil and others the Apex Court made a distinction in delay and inordinate delay observing as under: - "In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. The law of limitation is thus founded on public policy." 16. In Vedabai @ Vaijayanatabai Baburao Patil V. Shantaram Baburao Patil and others the Apex Court made a distinction in delay and inordinate delay observing as under: - "In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the otherwise will be a relevant factor so the case calls for a more cautious approach." 17. For the foregoing reasons, I do not fined any illegality or infirmity in the impugned orders which are under challenge, accordingly the present writ petition lacks merit and is dismissed. 18. No order as to costs.