Maqbool Ahmad vs Haji Ghulam Hassan

Prayer for condonation of four months delay in preferring the appeal against the judgment/decree dated 26.12.1991 passed by Sub Judge

Kargil has been turned down, vide the impugned order, passed by District Judge Leh (Kargil). Hence this revision petition.

The back drop needs to be noticed.

Suit seeking declaration that the plaintiff nonapplicant was entitled to the estate of her deceased mother got decreed, on 26.12.1991, in the

court of Sub Judge Kargil, which further declared that the plaintiff was entitled to the relief of joint possession as well. The appeal could lie against

the decree to the District Judge who at the relevant time was headquarted at Ladakh and would hold his camp court at Kargil.

The appeal was preferred on 18.7.1992 alongwith the application u/s 5 of the Limitation Act seeking condonation of delay in filing the appeal on

the ground that two of the appellants had for decades gone away from the State of J and K and the third appellant, who had sought condonation

had been incapacitated by the pleaded grounds to prefer the appeal within the time prescribed.

Ocular evidence to make out a ""sufficient cause"" for not filing the appeal in time, was on scrutiny held by the District Judge to be not sufficient to

meet the requirements to warrant condonation of four months delay. The application seeking condonation having been rejected lead thus to the

dismissal of the appeal on the technical ground of limitation.

Section 5 of the Limitation Act, uses the term ""sufficient cause"", in relation to nonpreferring of an appeal or making the application within the

prescribed time, in an elastic manner to enable the courts not apply the law in meaning and manner which sub serves the ends of justice. That being

the purpose of the institution of courts, they have to make justifiable liberal approach in matters that involve substantial question of facts or law.

Ordinarily a litigation will not stand to benefit by lodging an appeal late. When and were substantial justice and technical consideration are pitted

against each other, the cause of substantial justice deserves to be preferred. There is no presumption that the delay is occasioned deliberately or on

account of malafides. A litigant does not stand to benefit by resorting to delay; he infact runs a serious risk in lodging the appeal late. Refusal to

Condon the delay can thus result in a meritorious matter being thrown out at the very thresh hold and the cause of justice can thus be defeated. The

delay if condoned will lead to the cause being decided on merits after hearing the parties. No pedantic approach is to be made or applied in

condoning the delay qua the lodging of an appeal. The ends of justice require that justice oriented approach has to be made to determine whether

sufficient cause for condonation of delay is made out. The courts have to take note of the spirit and philosophy in respect of ""sufficient cause"".

Justice oriented approach requires to decide a cause on merits in preference to the approach which scuttles it.

Turning of the facts of the matter which gave rise to the present revision, I may say that the appellate court has resorted to a pedantic approach

in assessing the occular evidence in such a manner as if it was required to return a verdict in a criminal trial. The approach ought to have been

liberal one in so far as, the appellant petitioner would not have been benefited in any way in delaying the filing of the appeal. The delay could not be

deliberate nor could it be on account of any malafidies. Culpable negligence of course, disentitles a litigant to the courts indulgence but an appellant

who projects his substantial cause for determination on merits cannot be said to have acted in ruse so as to deny him the benefit of decision of the

cause on its merits,

The ground projected in the petition seeking condonation of delay was the alleged indisposition or ill health of the appellant who hails from a

very backward and far flung area. The close and minute scrutiny of the occular evidence adduced in support of the plea of illness, resulting in his

incapacity to file the appeal in time, has lead the learned District Judge to error in that substantial cause as to title to property got deprived of

judicial adjudication on its merits. True that the petitioner appellant was by judicial interpretations required to explain every day's delay but this

expectation was in my opinion a rigid approach in that the appellant hails from a very backward area with meager transportation facility and to

climate is so vagrant that the division of Kargil and Ladakh remain virtually cut off for nearly six months in a year. Non examination of the Doctor in

support of the pleaded illness resulting in nonfiling of the appeal in time, which appears to have weighed with the District Judge, who adopt the

approach in analysing and assessing the evidence as if he was to decide a criminal case was not sufficient a reason to brush aside the other sworn

testimony. The appellant petitioner was not in any way to be benefited in delaying the lodging of the appeal. This circumstance coupled with

consideration of the topographical and climatic condition of the region, where the parties reside, ought to have persuaded the Ld. district Judge to

adopt a liberal approach in condoantion of delay as the delay itself would not have occasioned because of any deliberate act on the part of the

appellant or because of his malafides.

9.1 find in the totality of the circumstances that the appellant court's decision to throw out the appeal at the thresh hold on the technical

consideration of limitation has not in any way enhanced the cause of justice. The parties had exfade a substantial cause in respect of immovable

property so the District Jude ought to have in the given circumstances viz. the time of the deliver of the trial court's judgment, the topographical and

climatic conditions of the area and the backwardness of the litigants adopted liberal aproach in condoning the delay. The decision on the merits of

the case has been thus scuttled by turning down the prayer for condonation of delay. The impugned order therefore, deserves to be interfered with

so as to get the dispute raised in the suit adjudicated upon on its merits by the District Judge as the appellate court.

The order of the District Judge dismissing the application for condonation of delay resulting in dismissal of the appeal as time barred is,

therefore, setaside. The delay is condoned. The appeal is remitted to the District Judge who will after notice to the parties dispose it of on merits

after affording reasonable opportunities of hearing to both the sides. Revision motion as also the connected CMPs stand disposed of.