Rajinder Singh vs Chairman, UHBVN Ltd. and others

Mehinder Singh Sullar, J.—The contour of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that the civil suit for a decree of mandatory injunction filed by Rajinder Singh son of Sarup Singh appellant-plaintiff (for brevity "the plaintiff) was dismissed by the trial Court, by means of impugned judgment and decree dated 17.10.2006.

Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, alongwith the application for condonation of delay u/s 5 of the Indian Limitation Act (hereinafter to be referred as "the Act"). The first appellate Court dismissed the appeal as time barred as well as on merits, by virtue of impugned judgment and decree dated 11.12.2007.

The appellant-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal.

After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, the instant appeal deserves to be accepted in this context.

As is evident from the record that first appellate Court dismissed the appeal of the plaintiff as time barred and strange enough, at the same time it was dismissed on merits as well. The plaintiff moved an application for condonation of delay u/s 5 of the Act, inter-alia pleading that he could not file the appeal within a period of limitation as he was suffering from Typhoid w.e.f. 10.10.2006 to 13.12.2006 and he could not attend the Court on 17.10.2006 when his suit was dismissed by the trial Court. Subsequently, Sh. Anil Kumar, Advocate informed him with regard to the dismissal of his suit and supplied him the copy of judgment on 28.11.2006. Thereafter, he filed the appeal.

As is clear from the impugned judgment that the main grounds, which appear to have been weighed with the 1st Appellate Court to dismiss the application of the appellant u/s 5 of the Act, were that his counsel was present at the time of pronouncement of judgment by the trial Court and there was absolutely no medical evidence on the file that the appellant had suffered from Typhoid from 10.10.2006 to 13.12.2006.

What is not disputed here is that the application for condonation of delay is duly supported by the affidavit of the plaintiff, in which, he has reiterated that he was suffering from Typhoid from 10.10.2006 to 13.12.2006. Assuming for the sake of argument, if the appellate Court was not satisfied with his affidavit, then, it ought to have granted an opportunity to the plaintiff to produce medical evidence, instead of straightway jumping to dismiss the appeal.

The bare perusal of the record would reveal that the trial Court dismissed the suit of plaintiff on 17.10.2006. Application No.743 was moved to obtain certified copy of judgment and decree on 23.11.2006, which was prepared and delivered on 28.11.3006. The plaintiff filed the appeal on 19.12.2006. In this manner, there is only a delay of 27 days in filing the appeal. Therefore, to my mind, since the plaintiff has (sic) explained the delay in filing the appeal on account of his illness, so, the 1st appellate Court committed a legal error in summarily rejecting the application condonation of delay and the appeal of the plaintiff in this respect.

There is another aspect of the matter, which can be viewed from a different angle. The fundamental jurisprudence and the basic concept of law of limitation is well settled. The Hon''ble Apex Court in cases Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, AIR 2002 SC 1201 and The The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, has reiterated that the expression "sufficient cause" within the meaning of Section 5 of the Act should receive a liberal construction when no mala fide is imputable to a party, so as to advance substantial justice.

Sequelly, in case Sital Prasad Saxena (Dead) by Lrs. Vs. Union of India (UOI) and Others, it was ruled that the Courts should recall that "what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties."

Likewise, the Hon''ble Supreme Court in cases N. Balakrishnan Vs. M. Krishnamurthy, and Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , has held that 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 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 sub-serves the ends of justice that being the life-purpose 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 enumerated the following principles:-

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 pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must 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.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting 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.

As indicated hereinabove, the plaintiff sought condonation of delay of only 27 days in filing the appeal on the ground of his illness. No motive can possibly be attributed to him that he was benefitted in any manner by late filing the appeal. The case of the plaintiff squarely falls within the ambit and four corners of the law laid down by the Hon''ble Apex Court in the aforesaid judgments, which is the complete answer to the problem in hand in this relevant connection.

To me, as sufficient grounds have been made to condone the delay, therefore, the 1st Appellate Court committed a legal mistake in dismissing the appeal of appellant as time barred. Hence, its impugned judgment and decree cannot legally be maintained in the obtaining circumstances of the case.

In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side, during the course of hearing of the main appeal on merits, the instant appeal is partly accepted. Consequently, the impugned judgment and decree of 1st Appellate Court are hereby set aside. The matter is remitted back to it for its fresh decision on merits independently, without being influenced by the observations contained in the impugned judgment.

The parties through their counsel are directed to appear before the concerned appellate Court on 30.11.2011.