Hans Raj Khurana vs Nihal Chand

A.S Nehra, J.

This revision petition is directed against the order dated 18.11.1991 passed by the Additional District Judge, Rohtak, by which the appeal filed by the petitioner was dismissed.

Briefly stated, the facts of the case are that the petitioner, aggrieved by the judgment and decree dated 15.6.1991 passed by the Senior Sub Judge, Rohtak, filed an appeal before the Additional District Judge, Rohtak. Since the appeal filed by the petitioner was timebarred, therefore, he moved an application under section 5 of the Limitation Act for condoning the delay of 10 days in filing the appeal. The petitioner has stated in the application that, since he suffered a severe heart attack during the period from 25.7.1991 to 10.8.1991, therefore, he could not file the appeal in time. He further stated that his uncle also died on 2.8.1991.

The application under Section 5 of the Limitation Act has been dismissed on the ground that the petitioner has not been able to furnish any explanation for nonfiling of the appeal on 8th or 9th of August, 1991.

It has been held by the Supreme Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 S.C. 1353, as under :

"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 the 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 lifepurpose 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 as such, a liberal approach is adopted on principle as it is realised that:

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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 pendantic approach should be made. Why not every hour''s delay, every second''s delay ? The doctrine must be applied in a rational commonsense 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 nondeliberate delay.

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.

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."

Making a justiceoriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.

In view of the observations of the Supreme Court in Collector, Land Acquisition, Anantnag''s case (supra), this revision petition is allowed and the order dated 18.11.1991 of the Additional District Judge is set aside. The delay in filing the appeal before the Additional District Judge is condoned and the case is remanded to the Additional District Judge, Rohtak, for deciding the appeal on merits.

The parties are directed to appear before the Additional District Judge, Rohtak on 20.4.1992.