IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5873 of 2006 Date of decision : 18.8.2009 Chirag Din … Petitioner Versus Bachhitar Singh …Respondents CORAM : HON’BLE MR.JUSTICE VINOD K. SHARMA Present: Mr.P.K.Gupta, Advocate and Mr.Munish Gupta Advocate for the petitioner. Vinod K. Sharma, J. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 10.8.2006 passed by the learned Additional District Judge, Chandigarh dismissing the application moved under Section 5 of the Limitation Act for condoning the delay in filing the appeal. The plaintiff-respondent filed a suit for permanent injunction restraining the defendants from taking possession of the land situated in Village Daria U.T., Chandigarh in disregard to the orders dated 2.2.1996 and 15.9.1996 passed in another Civil suit titled as Sarup Singh Vs. Karnail Singh and others. The suit filed by the plaintiff-respondent was decreed vide judgment and decree dated 5.9.2001. The petitioner filed an appeal along with application under Section 5 of the Limitation Act for condoning the delay of 60 days in filing the appeal. It was pleaded by the petitioner, that immediately after the pronouncement of the order, he applied for certified copy, which was supplied to him on 10.10.2001. It was the case set up by the petitioner that CR No.5873 of 2006 he was advised by the counsel that the appeal could be filed within the period of 90 days from the date of receipt of the certified copy of the judgment and decree. The petitioner also pleaded that the papers could not collected from the office of the counsel due to winter vacations, and were made available only on 4.1.2002. Petitioner thus came to know that the period prescribed for filing an appeal was 30 days which had already expired. The petitioner claimed that he was an illiterate person and labourer by profession, and therefore he had no knowledge about the technicality of law. The application was contested and the averments made in the application were denied. From the pleadings of the parties, the learned appellate Court has framed the following issues:- 1. Whether the plaintiff is entitled to restrain the defendant from taking the possession of the suit land, on the grounds mentioned in the plaint? OPP. 2. Whether the suit is not legally maintainable. OPD 3. Relief. In support of the averments made in the application, the petitioner appeared in the witness box and closed his evidence. However, no evidence was led by the respondent. In spite of the fact that the evidence of the petitioner was un-rebutted, the application filed under Section 5 of the limitation Act was ordered to be dismissed by holding that the parties seeking condonation of delay has to show sufficient cause and explain each day’s delay. The learned appellate Court also was of the view that even though the Law of Limitation may harshly effect a particular party, but it has 2 CR No.5873 of 2006 to be applied with all its rigour, when the statute so prescribed and the courts had no power to extend the period of limitation on equitable grounds. The learned Court was also of the view that the plea set up by the petitioner, lacked material particulars, therefore, could not be believed, and dismissed the application. The proposition of the law applied with the learned Additional District Judge, cannot be disputed, however, it may be noticed that Hon’ble Supreme Court in case of State of West Bengal Vs. The Administrator, Howrah Municipality and others, has been pleased to lay down, that the expression “sufficient cause” in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N.Balakrishnan v. M. Krishnamurthy, (1988) 7 SCC 123 (: 1998 (2) PLJ 543) this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay. However, in such a case, the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. The Hon’ble Supreme Court in the case of Vedabai @ Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil, 2001(2) PLJ, 373, was pleased to lay down that sufficient cause should receive liberal construction and the court should adopt a pragmatic approach and 3 CR No.5873 of 2006 distinction should be made between a case where delay is inordinate and a case where delay is of a few days. It is only in the case of inordinate delay that prejudice to other party would be a relevant factor so as to call for a more cautious approach. But in case of delay of a few days, the prejudice to other side does not arise and, therefore, there should be more liberal approach. In the present case, it may be noticed that the delay was only 60 days and the petitioner by getting the delay condoned was not to be benefited except to have his right adjudicated on merits. This Hon’ble Court in the case of Prem Arora Vs. Food Corporation of India, 2004 (2) PLR, 123 held as under:- “10. It is not disputed that the appeal filed by the plaintiff before the learned first appellate Court was barred by limitation. However, he had filed an application for condonation of delay showing sufficient cause for not filing the appeal within the limitation. The applicant had maintained that in fact, he stood transferred to Makhu, which was at a distance of 55 kilometres from Ferozepur and as such had no means of knowing about the fact of the case being decided by the learned Civil Judge (Senior Division), Ferozepur. He had further maintained that his counsel had not informed him about the dismissal of the suit and as such, the appeal could not be filed within the limitation. 11. In my considered view, the learned first appellate Court has adopted hyper-technical approach in dismissing the appeal filed by the plaintiff. It is well settled that the Courts of law are meant for dispensing he justice between the parties. It is quite strange that the Food Corporation of India, which is an instrumentality of the State has chosen to oppose the aforesaid request made by the plaintiff. The matter should have been contested on merits alone. A party has no vested right to perpetuate injustice. In this view of the matter, the order dated 4 CR No.5873 of 2006 September 11,2001 passed by the learned Additional District Judge, Ferozepur is set aside and the Civil Appeal No.54 of 18.3.2000 filed by the plaintiff is restored back to its original number. The matter is remitted back to the learned Additional District Judge, Ferozepur for re-deciding he same on merits in accordance with law. The delay in filing the above said appeal is condoned.” In the present case also delay was only of 60 days. The appeal in the High Court against the decree can be filed within 90 days. It cannot therefore be said that the ground pleaded the petitioner was totally baseless. The court in given circumstances could compensate the party with costs while condoning the delay. This revision petition is allowed, the impugned order dated 10.8.2006 passed by the learned Additional District Judge, Chandigarh dismissing the application moved under Section 5 of the Limitation Act for condoning the delay in filing the appeal, is set aside. The application moved by the petitioner under Section 5 of the Limitation Act for condoning the delay is allowed, subject to the payment of Rs.5000/- (Rupees five thousand) as costs. Learned appellate Court is now directed to decide the appeal on merits in accordance with law. [ Vinod K. Sharma ] Judge 18.08.2009 sd 5