IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5164 of 2009 Date of Decision : 17.11.2009 Bimla Devi .....Petitioner Versus Reema Rani & Ors. ....Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Arihant Jain,Advocate for the petitioner. Mr.H.R.Nohria, Advocate for respondent No.1. Mr. S.S.Sodhi, Advocate for respondents no.2 to 4. Sabina,J.(Oral) Plaintiff had filed the suit for mandatory injunction directing the defendants to dismantle/demolish or to remove haphazardly constructed and titled/bulged(to the side of the plaintiff) and earth wall adjoining on the southern side of the plaintiff measuring about 67 karams (about 350 ft) in length, formerly 6 ft. and now 12 ft. in height and 9' thick, situated in Nehru Market, Bagrian Chowk, M.K.Road, Dhuri, Distt. Sangrur and may re-erect the same afresh and structurally safe. Vide the judgment and decree dated 11.09.2008, the suit filed by the plaintiff as well as counter claim filed by the defendant no.2-petitioner were dismissed. Aggrieved by the same, plaintiff filed an appeal and the said appeal is admittedly pending before the District Judge, Sangrur. However, the appeal filed by the petitioner- defendant no.2 was dismissed vide order dated 28.07.2009 being time barred. Hence, the present revision petition. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. Civil Revision No.5164 of 2009 ..2.. The petitioner filed the appeal against the judgment and decree dated 11.09.2008 along with an application under Section 5 of the Limitation Act. The learned District Judge held that the delay in filing the appeal had not been duly explained by the petitioner and hence, the application under Section 5 of the Limitation Act was dismissed. It has been held by the Apex Court in Collector Land Acquisition Ananatnag and others Vs. Mst.Katiji and others AIR 1987 SC 1353 which reads as under: “1. Ordinarly 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 must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical consideration 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 mala fides. A litigant does not stand to benefit by resorting to delay. In fact, Civil Revision No.5164 of 2009 ..3.. 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.” In the present case, the appeal filed by the plaintiff is pending and in case the delay in filing the appeal by the petitioner had been condoned, both the appeals filed by the plaintiff as well as petitioner-defendant no.2 would have been decided on merits. In peculiar facts and circumstances of the present case, the delay in filing the appeal was liable to be condoned. Accordingly, this revision petition is allowed. The impugned order is set aside and the application for condonation of delay in filing the appeal under Section 5 of the Limitation Act stands allowed. The learned District Judge is directed to decide the appeal filed by the petitioner- defendant no.2 on merits. 17th November,2009. (SABINA) Seema-II Judge