CR No. 4737 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 17275-CII of 2008 and CR No. 4737 of 2008 (O&M) Date of Decision: 27.10.2009 The Financial Commissioner (Dev) & Principal Secretary to Govt. of Punjab and another ....Petitioners. Versus Arvind Kaur and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Yatinder Sharma, DAG, Punjab, for the petitioners. Mr. Vishal Sharma, Advocate for the respondents. AJAY KUMAR MITTAL, J. C.M. No. 17275-CII of 2008 Allowed as prayed for. CR No. 4737 of 2008 The petitioners are aggrieved against the order dated 10.5.2008 passed by the lower appellate court whereby an application filed by them for condonation of three days' delay in filing the appeal before the lower appellate court was dismissed. The facts necessary for the disposal of the present revision are that the suit filed by the plaintiff-respondent No.1 was decreed by the trial court vide judgment and decree dated 25.11.2004. The CR No. 4737 of 2008 -2- defendants applied for certified copy of the judgment and decree on 29.11.2004 which was prepared on 14.12.2004 and was delivered to them on 15.12.2004. The Government Pleader, Incharge of the case had sent his comments to the Deputy District Attorney on 15.12.2004 and the concerned Deputy District Attorney furnished the comments to the District Attorney on 17.12.2004 who in turn furnished his comments to the Joint Director, Prosecution and Litigation, Ludhiana on 18.12.2004. The Joint Director had sent his comments to the Director, Prosecution and Litigation, Chandigarh on 22.12.2004. The instructions of Director, Prosecution and Litigation, Punjab for filing the appeal were received on 12.1.2005 and thereafter the appeal was preferred before the lower appellate court. In that process, the period of limitation expired and the appeal was filed after a delay of three days. Along with the appeal, an application under Section 5 of the Limitation Act for condonation of 3 days' delay was filed which was dismissed by the lower appellate court vide order dated 10.5.2008 which is impugned in the present revision petition. Learned State counsel submitted that the delay was neither intentional nor wilful and from the perusal of the facts, it cannot be said that the petitioners were not vigilant in pursuing this case. He has placed reliance upon the judgments of the Apex Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353, Special Tehsildar Land Acquisition, Kerala v. K. V. Ayisumma, AIR 1996 SC 2750 and Vedabai alias Vaijayantabai Baburao Patil v. Shantaram Baburao Patil and others, AIR 2001 SC 2582 in support of his submissions and prayed that delay of three days CR No. 4737 of 2008 -3- may be condoned. On the other hand, learned counsel for the respondent supported the order passed by the lower appellate court. I have heard the learned counsel for the parties and perused the record with their assistance. The Apex Court in Vedabai alias Vaijayantabai Baburao Patil's case (supra) held that the court while exercising the powers under Section 5 of the Act should adopt a pragmatic approach and exercise the discretion on the facts and circumstances of each case keeping in mind that the expression “sufficient cause” should be interpreted liberally while imparting substantial justice. The relevant observations of the Apex Court read thus:- “In exercising discretion under S. 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause', the principal of advancing substantial justice is of prime CR No. 4737 of 2008 -4- importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under S. 5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression 'sufficient cause' should receive liberal construction, in catena of decisions (See State of West Bengal v. Administrator, Howrah Municipality (1972) 1 SCC 366: (AIR 1972 SC 749) and Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi (1978) 2 SCC 116: (AIR 1978 SC 537). The High Court in exercising its jurisdiction under S. 115 C.P.C. failed to correct the jurisdictional error of the appellate Court.” Applying the aforesaid guiding principles to the facts of the present case, the order passed by the lower appellate court declining to condone the delay of 3 days' in filing the appeal cannot be sustained and it cannot be said that there was no sufficient cause for not condoning the delay or that the delay on the part of the defendant- petitioners in approaching the lower appellate court was deliberate or intentional. Accordingly, the present revision petition is allowed and the order dated 10.5.2008 passed by the lower appellate court is set aside. The lower appellate court shall now proceed in accordance with law to decide the appeal on merits after issuing notice to the plaintiff- respondent. CR No. 4737 of 2008 -5- The parties through their counsel are directed to appear before the lower appellate court on 25.11.2009 for further proceedings in the matter in accordance with law. October 27, 2009 (AJAY KUMAR MITTAL) gbs JUDGE