Judgment : Application-CLMA No. 9625/2010 has been filed by the applicants/appellants seeking condonation of 2614 days’ delay in filing restoration application bearing MCC No. 970/2010 against which the respondent has filed objection by moving application bearing CLMA No. 2358/2011. 2. Heard learned counsel for the parties and perused the record. 3. This Second Appeal was filed before the Allahabad High Court in the year 1992. After creation of Uttarakhand High Court, the same was transferred to this Court from the Allahabad High Court under Section-35 (2) of the U.P. Reorganization Act, 2000. 4. From perusal of the record it reveals that on 10.06.2003 notice was issued to the appellants/ applicants. The office endorsement dated 13.06.2003 further reveals that in compliance of Court’s order, notices were issued to the applicants returnable before 14.07.2003. Thereafter, on 14.08.2003, the appeal was listed before the Court and on that date, since none appeared for the parties, the appeal was dismissed for non-prosecution. 5. In support of delay condonation application, affidavit of Mr. Gyan has been filed on behalf of the applicants. It has been stated in the affidavit, on oath, that instant Second Appeal was filed by the applicants through Shri N.C. Rajvanshi, Advocate at Allahabad, who had assured the applicants that the appeal would be argued and prior intimation would be sent to them, as soon as the appeal would be listed for final hearing. The applicants were under the impression that the matter is still pending before the Court and when the matter would be listed they would be informed. The affidavit further asserts that on 07.10.2010, when the applicants received a Court’s summon issued by 2nd Addl. Civil Judge (Jr. Div.), Roorkee in Execution Case no. 20 of 1992 ‘Beg Ram vs. Buddu and others’, they took copy of said summon to a local counsel, who informed that the Second Appeal no. 1141 of 1992 was transferred from Allahabad High Court to Uttarakhand High Court at Nainital, which was dismissed for non prosecution on 14.08.2003. It has further been averred in the affidavit that no information/notice of transfer was sent to the applicants. Thereafter, the applicants contacted Mr. Siddhartha Singh, Advocate, during the vacations, who told that the High Court would reopen on 08.11.2010 and advised to move application for getting the Second Appeal restored. It has further been averred in the affidavit that no information/notice of transfer was sent to the applicants. Thereafter, the applicants contacted Mr. Siddhartha Singh, Advocate, during the vacations, who told that the High Court would reopen on 08.11.2010 and advised to move application for getting the Second Appeal restored. Thereafter, on 08.11.2010, the applicants came to Nainital and applied for certified copy of the order dated 14.08.2003. The applicants received certified copy of the order on 15.11.2010 and got prepared the restoration application but due to sudden demise of Hon’ble Justice Dharam Veer on 16.11.2010 and due to holiday of Id-Ul-Zuha on 17.11.2010, the restoration application was filed on 18.11.2010. It has been further averred in the affidavit that the applicants had no knowledge of the dismissal of Second Appeal, prior to receiving the notices of the said execution case and prior to enquiry made by the local counsel. The omission on the part of the applicants is neither deliberate nor willful and in case, restoration application is not allowed, after condoning the delay, the applicants shall suffer adversely. 6. On the other hand, the respondent has filed objection to the delay condonation application, with the assertion that the applicants have not explained each and every day’s delay in filing the delay condonation application and no explanation has been brought on record as to what was happening past 2614 days. It is further averred in the objection that after creation of State of Uttarakhand, this High Court issued notices to the applicants on 10.06.2003. However, since the property in dispute was in the possession of the applicants, they deliberately and willfully not enquired upon the matter. It is further stated in the objection that the applicants have not approached this Court with clean hands. 7. Learned counsel for the respondent vehemently opposed the delay condonation application and contended that notices were issued to the applicants on 13.06.2003 in pursuance of the Court’s order dated 10.06.2003, but nobody turned up on their behalf, thus notices sent to the appellants/applicants shall be deemed to have been served under the proviso prescribed under Chapter-8 Rule 12 of the High Court Rules. Lastly, it is contended that the reasons shown in the delay condonation application are not sufficient and satisfactory to allow the application. Lastly, it is contended that the reasons shown in the delay condonation application are not sufficient and satisfactory to allow the application. Learned counsel for the respondent relied on (2008) 17 Supreme Court Cases-448 ‘Pundlik Jalam Patil vs. Executive Engineer, Jalgaon and another’ and 2010 AIR SCW-4848 ‘Balwant Singh vs. Jagdish Singh and ors.’ In Pundlik Jalam Patil’s case, the Hon’ble Apex Court did not condone a delay of 1724 days in preferring appeal under Section 54 of LA Act against enhancement of compensation by Reference Court for the lengthy correspondence between the Government and the beneficiary. The Hon’ble Apex Court found this ground as insufficient and held that the respondent/ applicant cannot take advantage of its negligence, after a lapse of number of years. It was further held that the averments made in the application, seeking condonation of delay in filing appeal, do not show any acceptable cause much less sufficient cause to exercise Court’s discretion in its favour. In Balwant Singh’s case, the Hon’ble Supreme Court declined to condone the delay of over two years. In paragraph-6 of its judgment, Hon’ble the Apex Court has observed as follows:- “It is clear from the bare reading of the above paragraph that the applicants were totally callous about pursuing their appeal. They have acted irresponsibly and even with negligence. Besides this, they have not approached the Court with clean hands. The applicant, who seeks aid of the Court for exercising its discretionary power for condoning the delay, is expected to state correct facts and not state lies before the Court. Approaching the Court with unclean hands itself, is a ground for rejection of such application. In para-2 of the I.A.No. 1 of 2010, it has been shown that all the legal representatives of the deceased are residents of 9050/5, Naya Bas, Ambala City, (Haryana) and that there are no other legal heirs of the deceased. However, in para-4 of the I.A. No.2 of 2010, it has been stated that the LRs. of the deceased were in service and were not aware of the pendency of the appeal implying that they were living at different places and the letter of the lawyer was received at their residential address of Ambala. The stand taken in one application contradicts the stand taken in the other application. Furthermore, it is stated that they were not aware of the pendency of the appeal. The stand taken in one application contradicts the stand taken in the other application. Furthermore, it is stated that they were not aware of the pendency of the appeal. This, again, does not appear to be correct inasmuch as one of the legal representatives of the deceased, namely Har-Inder Singh was examined in the Trial Court as AW4, who is the son of the deceased. It is difficult for the Court to believe that the person who has been examined as a witness did not even take steps to find out the proceedings pending before the highest Court of the land. Even the letter, alleged to have been written by the counsel, has not been placed on record and the application ex facie lacks bona fide. There is no explanation on record as to why the application was not filed immediately in March 2010, as they had come to know that the appeal was to be listed for hearing in the month of May, and still, till 15th April, 2010, no steps were taken to file the application. The cumulative effect of the above conduct of the legal representatives or the sole deceased, appellant clearly shown that they have acted with callousness, irresponsibly and have not even stated true facts in the application for condonation of delay. The approach and conduct of the applicants certainly would invite criticism. Moreover, it will be difficult for the Court to exercise its discretionary power in favour of the applicants. There is not even a whisper in the entire application as to why, right from the death of the deceased in November, 2007, the appellant did not take any steps whatsoever till 15th April, 2010 to inform their counsel about the death of the deceased and to bring the legal representatives on record.” 8. On the other hand, learned counsel for the applicants relied on the judgment of Hon’ble Supreme Court rendered in Collector, Land Acquisition and another vs. MST. Katiji and others’, reported in (1987) 2 Supreme Court Cases-107 in which Hon’ble the Apex Court has held that applicability of Section-5 of Limitation Act, 1963 would be determined in existence of ‘sufficient cause’ and Courts should adopt a liberal and justice-oriented approach. Learned counsel for the applicants drew attention of the Court to paragraph-3 of the said judgment which reads as under:- “3. Learned counsel for the applicants drew attention of the Court to paragraph-3 of the said judgment which reads as under:- “3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 for 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 be decided on merits 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 doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are petted against each other, cause of substantial justice deserves to be preferred for the other side cannot 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 resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 9. In the matter in hand, I find that after transfer of the Second Appeal, notices were issued on 13.06.2003. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 9. In the matter in hand, I find that after transfer of the Second Appeal, notices were issued on 13.06.2003. However, the office endorsement does not show that notices were actually issued to the applicants/ appellants by ordinary/registered post acknowledgement due or not? I do not find such endorsement of the Registry, which would indicate that notices were ever returned, served or un-served. The matter was listed before the Court on 14.08.2003. While dismissing the instant appeal, the Court also did not observe in its order that service of notice on the appellants is sufficient. Moreover, the applicants in paragraph no.6 of the affidavit, accompanying delay condonation application, have categorically stated that no information/ notice of transfer were sent to them. Therefore, it is apparent that the applicants were not aware about the listing of the instant appeal, hence there is just reason for non-appearance in the Court on the date when the appeal was listed on board. Though, there is 2614 days’ delay in filing the present restoration application, but the applicants were not aware either about the listing of the appeal in the board or about the status of the appeal and first of all, they came to know about the dismissal of the appeal, when summon of the Execution Court was served on them. Therefore, in the present case, limitation will be counted from the date of knowledge. I am fully satisfied and convinced with the reasons mentioned in the delay condonation application. 10. While propounding absolute honour to the judgments cited on behalf of the respondent, I am of the view that, in the peculiar facts and circumstances of the case, the ratio of law, cited by the respondent, is not applicable in the matter in hand in its entirety. Rather, I am fortified with the view taken by Hon’ble Apex Court in the case of ‘Collector, Land Acquisition and another vs. MST. Katiji and others’, whereby Hon’ble the Apex Court has held that applicability of Section-5 of Limitation Act, 1963 would be determined in existence of ‘sufficient cause’ and Courts should adopt a liberal and justice-oriented approach. 10. For the forgoing reasons, the delay condonation application deserves to be allowed. Katiji and others’, whereby Hon’ble the Apex Court has held that applicability of Section-5 of Limitation Act, 1963 would be determined in existence of ‘sufficient cause’ and Courts should adopt a liberal and justice-oriented approach. 10. For the forgoing reasons, the delay condonation application deserves to be allowed. The delay condonation application is accordingly, allowed. The restoration application is treated to have been filed within time. Consequently, objection on delay condonation application (CLMA No. 2358/2011) is rejected. MCC No. 970/10 (Restoration Application) 11. Same reasons have been stated in the affidavit filed in support of the restoration application, which are satisfactory to allow the application. Restoration application is, accordingly, allowed. Order dated 14.08.2003 passed by this court is hereby recalled and the Second Appeal is restored to its original number. 12. Since, instant second appeal is one of the oldest appeals pending before this Court, list this appeal peremptorily in next week for final hearing.