Surya Prakash Katare vs Ishtyak Khan

Sheel Nagu, J.—Learned counsel for the parties are heard finally. This second appeal was admitted for final hearing on 22.8.2008 by framing following substantial question of law:-

Whether the learned lower appellate Court has erred in rejecting the application u/s 5 of the Limitation Act taking rigid view in the matter while considering the question of condonation of delay of only 7-8 days in filing of the appeal?

Whether on the facts and material brought on record by the plaintiffs the learned Court below was justified in dismissing the suit for eviction filed on the ground u/s 12(1)(b), (c) and (f) of the M.P. Accommodation Control Act?

The factual matrix lies in a narrow compass. After dismissal of the suit for eviction instituted on the ground of bona fide need u/s. 12(1)(f) of the M.P. Accommodation Control Act, 1961, the plaintiff landlord preferred first appeal u/s. 96 CPC along with an application u/s. 5 of the Limitation Act for condoning delay of 7 to 8 days.

The first appellate court rejected the application u/s. 5 of the Limitation Act by holding that the delay of 7 to 8 days has not been reasonably explained. Resultantly the first appeal paved the way of dismissal for being time barred.

The present second appeal has been filed against the above said decision of the first appellate court.

Perusal of the application u/s. 5 preferred by the appellant before the first appellate court in support of the first appeal discloses the material facts that after passing of the judgment and decree on 22.12.2006 by the trial court, an application was moved on 11.01.2007 for obtaining copy of the certified copy of the same which was actually obtained on 21.3.2007. It is further averred in the said application that the factum of receipt of certified copy of the judgment and decree of the trial court was not intimated by the counsel to the appellant. It is further contended that son of the appellants, who are husband and wife, was out of station on tour and, therefore no contact could be made with the counsel. When the son of the appellants after returning from tour contacted counsel on 10.2.2007 the factum of receipt of certified copy came to the knowledge of the appellant whereafter without any further delay appeal was filed on 12.2.2007 with delay of 7 to 8 days.

The learned counsel for the appellants placing reliance on decision in the case of reported in N. Balakrishnan Vs. M. Krishnamurthy, and Darshan Singh and others Vs. Collector Singh and others, contends that positive, flexible and pragmatic approach should be adopted in matter of condonation of delay of a few days instead of adopting a pedantic and dogmatic approach.

On the other hand, learned counsel for the respondents has contended that sufficient and reasonable cause was not shown and day to day delay has not been explained and also that no explanation has been given as regards delay caused in applying for certified copy and also that why the appellants themselves could not approach their counsel when their son was on tour.

It is not disputed by either side that appellants were either senior citizens or about to be senior citizens and looking to the number of days of delay which was only 7 to 8 days in preferring the appeal, the court below ought to have adopted more pragmatic and flexible approach in view of the settled law that every case deserves to be decided on merits rather than being thrown out at the threshold on the technical ground of being barred by limitation of 7 to 8 days. Human failing and weaknesses sometimes cannot be vouched for by way of documentary proof and, therefore while considering the question of condonation of delay, the Apex Court has time and again has reiterated the need of pragmatism, flexibility, realism while eschewing dogmatism.

This Court is of the considered view that the rejection of the first appeal by the first appellate court at the very threshold for being barred by limitation of 7 to 8 days was not justified thereby causing substantial error in rendering of justice.

Accordingly, first substantial question of law is answered in the affirmative leaving the second question undecided as the factual and legal tenability of the first appeal is yet to be considered by the first appellate court. The second appeal deserves to be and is therefore allowed with cost of Rs. 1000/- to be paid to the respondent.