Hardev Singh vs Surinder Kaur & Ors.

Vinay Mittal, J.—On a request made by the learned Counsel for the petitioner at the outset, the present revision petition is treated to be a petition filed under Article 227 of the Constitution of India.

The plaintiff is petitioner before this Court. He is aggrieved against the order dated January 23, 1990 passed by the Additional District Judge, Bathinda whereby an appeal filed by the plaintiff petitioner has been dismissed as barred by limitation.

The plaintiffpetitioner alongwith one Gurmail Kaur (sister) had filed a suit for possession. The said suit was dismissed by the trial Court vide a judgment and decree dated January 14, 1988. The plaintiff Hardev Singh filed an appeal before the appellate Court. The said appeal was barred by limitation. There was a delay of 21/2 months in filing the aforesaid appeal. Consequently, an application under Section 5 of the Limitation Act was also filed by the plaintiff seeking condonation of delay.

The learned appellate Court found that there was no sufficient cause for filing the aforesaid appeal beyond the period of limitation, therefore, the application under Section 5 of the Limitation Act was dismissed. As a result thereof, the appeal filed by the plaintiff was also dismissed as barred by limitation.

I have heard the learned Counsel for the parties and have also taken into consideration the facts and circumstances of the case.

It is no doubt that the plaintiff had filed the appeal after a delay of 21/2 months after the expiry of limitation. It also appears that the plaintiff was negligent in not filing the appeal within limitation. However, the aforesaid fact by itself cannot be taken to be sufficient to dislodge the plaintiff. It is well settled that while considering the question of condonation of delay, the Courts have to adopt a liberal approach and hypertechnical view has to be avoided. The plaintiff had nothing to gain by causing the delay. Nothing has been shown that the aforesaid appeal had been filed after a period of limitation is allowed and the order dated January 23, 1990 passed by the learned Additional District Judge, Bathinda is set aside. As a result thereof, the delay in filing the first appeal by the plaintiffpetitioner is condoned. The appeal filed by the plaintiff shall now be decided by the learned Additional District Judge, Bathinda on the merits of controversy.

The costs of the present revision petition are assessed at Rs. 10,000/. The costs would be a condition precedent for permitting the plaintiff to prosecute his appeal before the learned First appellate Court.

The parties through their learned Counsel are directed to appear before the learned Additional District Judge, Bathinda on May 22, 2006.

A copy of the order to be given dasti on payment of usual charges.