C.R. No. 4819 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4819 of 2010 (O&M) Date of decision: 5.1.2011 Krishan Kumar Bhatia ......Appellant Versus Jagdish Lal Bhatia and others .......Respondents ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Raj Mohan Singh, Advocate, for the appellant. Mr. Ranjit Saini, Advocate, for the respondents. **** SABINA, J. Plaintiff Jagdish Lal Bhatia had filed suit for partition. The said suit was decreed by the trial Court vide judgment and decree dated 7.10.2004. Thereafter, plaintiff moved an application for passing of final decree. The said application was allowed by the trial Court vide order dated 1.5.2009. Aggrieved by the same, defendant No.1 Krishan Kumar Bhatia filed an appeal alongwith an application under Section 5 of the Limitation Act. Vide impugned order dated 1.2.2010, the application seeking condonation of delay in filing the appeal was dismissed. Hence, the present revision petition. C.R. No. 4819 of 2010 (O&M) 2 Learned counsel for the petitioner has submitted that the petitioner had earlier received certified copy of the impugned order on 19.5.2009, but the same was misplaced. Thereafter, the petitioner again applied for certified copy of the impugned order on 18.7.2009 and the same was received by the petitioner on 23.7.2009 and the appeal was filed on 24.7.2009. From 16.5.2009 till 15.6.2009 there was no civil work in the trial Court due to summer vacation. The delay in filing the appeal was not intentional. Learned counsel for the respondent, on the other hand, has submitted that the petitioner had failed to establish that delay in filing the appeal was bona fide. The Apex Court in Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, AIR 1987 Supreme Court, 1353 had held as under:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. 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. 3. “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 C.R. No. 4819 of 2010 (O&M) 3 must be applied in a rational common sense pragmatic manner. 4. 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. 5. 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. 6. 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.” Thus, a liberal approach is liable to be adopted while dealing with an application under Section 5 of the Limitation Act. The petitioner has taken the plea that he had earlier received certified copy of the impugned order on 19.5.2009. However, the appeal was filed on the basis of certified copy which was supplied on 23.7.2009 on an application moved by the petitioner on 18.7.2009. The plea of the petitioner is that due to wrong advice given by the counsel the appeal could not be filed within the period of limitation. In case the application seeking condonation of delay in filing the appeal is allowed, the matter between the parties would be disposed of C.R. No. 4819 of 2010 (O&M) 4 on merits. It appears that the delay in filing the appeal was neither intentional nor deliberate but due to wrong advice given by the counsel. Accordingly, this petition is allowed. The impugned order whereby application seeking condonation of delay in filing the appeal was dismissed is set aside. Consequently, the application seeking condonation of delay in filing the appeal is allowed. The appellate Court is directed to dispose of the appeal expeditiously. Parties are directed to appear before the appellate Court on 24.1.2011. (SABINA) JUDGE January 5, 2011 Anand