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2014 DIGILAW 40 (PNJ)

Sham Lal v. Jai Kishan

2014-01-09

MEHINDER SINGH SULLAR

body2014
JUDGMENT Mr. Mehinder Singh Sullar, J.(Oral) - The matrix of the facts & material, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record is that, the civil suit instituted by petitioner-plaintiff Sham Lal son of Ram Sarup(for brevity “the plaintiff”) against respondent-defendant Jai Kishan son of Ram Sarup(for short “the defendant”) for a decree of permanent injunction, was dismissed by the trial court by way of judgment and decree dated 20.10.2011(Annexure P-1). 2. Aggrieved thereby, the plaintiff filed the first appeal (Annexure P-2) along with the application u/s 5 of the Limitation Act, for condonation of delay of 35 days’ in filing the appeal. The first Appellate Court did not condone the delay and dismissed the application for condonation of delay by virtue of impugned order dated 03.01.2012 (Annexure P-3). 3. The petitioner-plaintiff did not feel satisfied and preferred the present revision petition to challenge the impugned order(Annexure P-3), invoking the provisions of Article 227 of the Constitution of India. 4. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant revision petition deserves to be accepted in this context. 5. As is evident from the record that, the petitioner-plaintiff has filed the application for condonation of delay of 35 days’ in filing the appeal on the ground that he was suffering from Typhoid and remained confined to bed from 18.11.2011 to 24.11.2011. Thereafter, he could not attend his work due to weakness and severe cervical pain. In this manner, the delay of 35 days in filing the appeal has occurred. He has filed an affidavit and medical certificate in this relevant context. However, the application for condonation of delay was dismissed by the first Appellate Court. 6. The main grounds which appear to have been weighed with the first Appellate Court to negate the plea of the petitioner were that the petitioner-plaintiff did not immediately apply for obtaining the certified copy of the impugned judgment & decree and he has not properly explained the delay in filing the appeal so as to justify the condonation thereof. Here to me, the first Appellate Court appears to have slipped into a deep legal error in this regard. Here to me, the first Appellate Court appears to have slipped into a deep legal error in this regard. It is not a matter of dispute that there is a delay of only 35 days in filing the appeal. In support thereof, he has filed his affidavit and medical certificate. Therefore, there are sufficient grounds to condone the delay of 35 days in filing the appeal. 7. Not only that, the fundamental jurisprudence and the basic concept of law of limitation is well settled. The Hon’ble Apex Court in cases Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, AIR 2002 Supreme Court 1201 and The State of West Bengal v. The Administrator, Howrah Municipality and others, (1972) 1 Supreme Court Cases 366 : AIR 1972 SC 749 , has reiterated that the expression “sufficient cause” within the meaning of Section 5 of the Act should receive a liberal construction when no mala fide is imputable to a party, so as to advance substantial justice. 8. Sequelly, in case Sital Prasad Saxena (dead) by LRs v. Union of India and others, AIR 1985 Supreme Court 1, it was ruled that the Courts should recall that “what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties. 9. Likewise, the Hon’ble Supreme Court in cases N. Balakrishnan v. M. Krishnamurthy, (1998) 7 Supreme Court Cases, 123 and Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 Supreme Court 1353, has held that 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 enumerated the following principles:- 1. 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 enumerated the following principles:- 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 pitted 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 malafides. 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. 10. What cannot possibly be disputed here is that, since valuable rights of the petitioner-plaintiff in the property in question are involved, so, he was not going to be benefitted, in any manner, for the delay in filing the appeal. Taking into consideration the nature of litigation and indicated attending circumstances, the first Appellate Court ought to have condoned the delay of 35 days in filing the appeal under the present set of circumstances, particularly when the opposite side could possibly be compensated with adequate costs. 11. In the light of aforesaid reasons, the instant revision petition is accepted and the impugned order(Annexure P-3) is hereby set aside. Consequently, the application for condonation of delay is allowed and the delay of 35 days in filing the appeal is hereby condoned in the obtaining circumstances of the case. 11. In the light of aforesaid reasons, the instant revision petition is accepted and the impugned order(Annexure P-3) is hereby set aside. Consequently, the application for condonation of delay is allowed and the delay of 35 days in filing the appeal is hereby condoned in the obtaining circumstances of the case. The first Appellate Court is directed to entertain the appeal for regular hearing and dispose of the same in accordance with law. However, this would be subject to the payment of Rs.3,000/- as costs to be paid by the petitioner-plaintiff to the respondent-defendant as compensatory cost. The parties through their counsel are directed to appear before the first Appellate Court on 25.03.2014 for further proceedings in the matter. ---------0.B.S.0------------ —————————