Hari Ram vs Ishwar Singh and Others

Ram Chand Gupta, J.—The present petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 1.2.2011 passed by Additional District Judge, Bhiwani vide which application filed by Ishwar Singh, Respondent-applicant for condonation of delay in filing the appeal u/s 5 of the Limitation Act, was allowed.

I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that the Respondent No. 1-applicant filed a suit against the present Petitioner for declaration which was dismissed on 27.1.2010 by Civil Judge (Senior Division), Bhiwani. Respondent No. 1-Plaintiff filed an appeal against the judgment and decree along with the application for condonation of delay in filing the appeal. The said application was allowed by the learned Ist appellate Court by observing as under:

Cost paid. Reply to the application for condonation of delay has already been filed. Arguments heard. It was argued by learned Counsel for the Appellant that there was a delay of 50 days in filing the appeal because the Appellant fell sick and there was a medical certificate in this regard from Dr. Ravi Khattar, B.A.M.S. showing that Ishwar Singh was under his treatment from 27.2.2010 to 8.4.2010.

On the other hand, it was argued by learned Counsel for the Respondent that delay had to be explained day by day. It was argued by the counsel for the Respondent that the medical certificate appeared to be bogus and moreover, it did not contain the fact that applicant was rendered unfit to come to the Court.

Learned Counsel for Appellant-applicant placed reliance upon the judgment in the case of Lajo Devi v. Smt. Omwati and Ors. reported in 2003 (1) PLJ (P&H) 597 wherein it was held that liberal approach should be taken by Court while dealing with application u/s 5 of the Limitation Act. Learned Counsel for the applicant further placed reliance upon the judgment in the case of Smt. Bhago and Ors. v. Kashmiro and Ors. reported in 2009 (4) RCR (P&H) 647 wherein it was held that there should be liberal construction of the sufficient cause for short delay.

Having regards to the facts and circumstances of the case, this Court is of the considered opinion that the condonation of delay should be allowed subject to payment of Rs. 1,000/- as cost to the opposite party. It is ordered accordingly. Now to come up on 23.2.2011 for payment of cost and for further proceedings.

It has been contended by the learned Counsel for the Petitioner that a false plea has been taken by Respondent No. 1-Plaintiff that he was under treatment. Further contends that copy was prepared on 6.2.2010, though delivery was taken by the Respondent-Plaintiff on 26.2.2010 and thus, there was delay in filing the appeal.

Law on the point of condonation of delay is very liberal. Law is well settled that liberal approach should be taken by Court while dealing with application u/s 5 of Limitation Act. Plea was taken by the Respondent-Plaintiff that he remained under treatment from 27.2.2010 to 8.4.2010 which was accepted by learned Ist appellate Court. In a recent judgment rendered by Hon''ble Apex Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and Anr. 2010(2) RCR 284, law on the point of condonation of delay in filing the appeal has been summed up as under:

We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , N. Balakrishnan Vs. M. Krishnamurthy, and Vedabai @ Vaijayanatabai Baburao Pateil Vs. Shantaram Baburao Patil and Others, In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, State of Haryana Vs. Chandra Mani and others, State of U. P. and others Vs. Harish Chandra and others, State of Bihar Vs. Ratan Lal Sahu and Others, , State of Nagaland Vs. Lipok AO and Others, and State (NCT of Delhi) v. Ahmed Jaan 2008(4) R.C.R. (Cri) 119 : 2008 (4) RCR 126 : 2008(4) SCT 25 : 2008(2) RCR 234 : 2008 (5) RAJ 214 : (2008) 14 SCC 582.

Hence, in view of these facts and in view of the legal proposition held by Hon''ble Apex Court in aforementioned case, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Thus, the present revision petition is, hereby, dismissed being devoid of any merit.