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2017 DIGILAW 2007 (RAJ)

SATYA NARAYAN v. PARBODH SHARMA

2017-09-07

VIRENDRA KUMAR MATHUR

body2017
ORDER : Virendra Kumar Mathur, J. The appellant-applicant has filed this application (IA No. 575/14) under section 5 of the Limitation Act for condonation of delay in filing the appeal. It was contended that the appellant-applicant has preferred this Civil First Appeal challenging judgment & decree dated 22.04.2014 passed by the Additional District Judge No.5, Jodhpur Metropolitan in Civil Original Suit No. 81/2012 (L.Rs of Lalchand v. Prabodh Sharma & anr), whereby the suit filed by the appellant-plaintiff for recovery of possession of the property and damages has been dismissed. It was contended that the appellant-applicant was having no knowledge about limitation for filing appeal as the applicant is unaware about legal proceedings and after passing of the judgment & decree dated 22.04.2014 by the trial court, in the month of November 2014 he appeared in another case to lead evidence and thereafter, the appellant-applicant immediately applied for certified copy, which was received on 17.11.2014. Thereafter, the present appeal was drafted and filed before this Court without any further delay. Due to above mentioned circumstances, delay has occurred in filing the First Appeal and hence, the appellant-applicant is bona fide while filing the present appeal as delay was caused due to unavoidable circumstances. In the above mentioned circumstances, the delay is sought to be condoned. The application is supported by an affidavit. 2. The respondent did not file reply to the application but he contended that there is delay of 122 days in filing the appeal. This inordinate delay has not been explained by the appellant and only explanation is that in the month of November 2014, the appellant applicant appeared in another case to lead evidence and thereafter he immediately applied for certified copy, which was received to him on 17.11.2014. No fact was mentioned about when the judgment & decree came to his knowledge. It can not be a ground that he had no knowledge about limitation for filing the appeal. 3. Heard learned counsel for the parties. 4. The appellant-applicant while repeating the averments in the application, stated that in the month of November 2014, when the applicant appeared in another case to lead evidence, thereafter he immediately applied for certified copy of the judgment & decree, which was received on 17.11.2014. No explanation is given about inordinate delay of 122 days. 4. The appellant-applicant while repeating the averments in the application, stated that in the month of November 2014, when the applicant appeared in another case to lead evidence, thereafter he immediately applied for certified copy of the judgment & decree, which was received on 17.11.2014. No explanation is given about inordinate delay of 122 days. This can not be a ground that he was having no knowledge about limitation for filing an appeal. He was represented through advocate before the trial court which passed the judgment & decree on 22.04.2014. It was not the case that his counsel has not informed him about the judgment & decree passed in the suit. He mentioned reason that he had no knowledge about law of limitation but his counsel has certainly knowledge about limitation and certainly on his advise he has chosen to prefer the appeal. The reason for delay shown is only that when he appeared in another case, he applied for certified copy, which was received on 17.11.2014. 5. The counsel for the appellant-applicant has relied on judgment reported in AIR 1987 SC 1353 (Collector, Land Acquisition, Anantnag & another v. Mst Katiji & others) and argued that court should adopt liberal approach for condoning delay. It is true that 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. "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 should be applied in a rational, common sense, pragmatic manner. 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. 6. 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. Making a liberal approach from this perspective in the present matter, there is sufficient cause for condoning the delay. 7. The application for condonation of delay is, therefore, accepted. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. Making a liberal approach from this perspective in the present matter, there is sufficient cause for condoning the delay. 7. The application for condonation of delay is, therefore, accepted. Delay in filing the appeal is condoned. 8. Office to proceed further.