Civil Revision No.4517 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4517 of 2010(O&M) Date of Decision 25.02.2011 Guru Arjun Dev Society, Preet Nagar Mohalla, Ludhiana and another ...... Petitioners VERSUS Amrit Sagar Kashyap and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Rahul Rampal, Advocate, for the petitioners. Mr.Puneet Jindal, Advocate, for respondent Nos.1 to 5. ***** A.N.JINDAL, J: The petitioners have assailed the order dated 08.04.2010 (Annexure P-1), passed by the Additional District Judge, Fast Track Court, Ludhiana, dismissing the application for condonation of delay of 130 days in filing the appeal. The facts in the background of the case are that the plaintiffs- respondent Nos.1 to 5 (herein referred as 'the respondents') had preferred a suit for possession of the land measuring 2800 square yards in the form of two different claims out of which first claim was against respondent Nos.6 to 11 and second claim was qua the property in possession of the petitioners-defendant Nos.9 & 11 (herein referred as 'the petitioners'). The respondents further submitted that defendant Nos.1 and 2-respondent Nos.6 and 7 had forcibly entered into possession of the portion ABCD of the suit property. Further the defendant Nos.7 to 9-petitioners had entered into Civil Revision No.4517 of 2010 2 illegal possession of the property marked as CEFG. Upon notice, the petitioners appeared and filed the written statement and further alleged that respondent Nos.1 and 2 had sold the land measuring 1100 square yards to petitioner No.1 vide registered sale deed bearing vasika No.7929 dated 21.07.1997 and respondent No.5 had also sold plot measuring 362 square yards of the said property to them on 27.08.1981, therefore, they are the owners in possession of the same. The suit was contested. However, vide order dated 23.10.2001, the petitioners were proceeded against ex-parte and vide judgment dated 06.09.2005, the trial Court decreed the suit of the respondents ex-parte with costs directing the defendants to hand over the possession of the land measuring 666 square yards already sold by defendant Nos.1 and 2 as per compromise within two months from the said judgment and decree. When the petitioners came to know about the judgment and decree, they preferred the appeal on 27.03.2006 alongwith application for condonation of delay. While requesting for condoning the delay, it was urged that in the year 2001 Amrit Sagar Kashyap and Atul Kashyap-respondents as well as counsel for the petitioners had assured the petitioners that there was no worry as the sale deed has already been got executed in favour of petitioner No.1, therefore, no decree could be passed in favour of the respondents-plaintiffs. Believing their counsel's assertion as well as of respondents, they did not attend the Court. Ultimately, they came to know that the decree has been passed against them, therefore, after collecting the copy of judgment and decree dated 06.09.2005, they filed the application for condonation of delay. The respondents contested the application stating that the petitioners were pursuing the criminal case bearing FIR No.233 of 1997 Civil Revision No.4517 of 2010 3 under Sections 420, 467, 468, 120-B IPC which was lodged against Harchand Singh, Ex-President of Guru Arjan Dev Society at Police Station Division No.5, Ludhiana and the delay was intentional. On the pleadings of the parties, following issues were framed:- 1. Whether there are sufficient grounds for condonation of delay in filing the appeal ? OPA 2. Relief. In support of the assertions, as set up by the petitioners, they examined Labh Singh (PW1) wherein he reiterated the allegations and stated that on the assurance of Amrit Sagar Kashyap-respondent and Sh.J.K.Mohindra, Advocate, their counsel, they did not attend the Court, therefore, the impugned judgment was surprise to them whereby the suit was decreed. Actually, Labh Singh and Harchand Singh, who were representing the Society, did not attend the proceedings after 23.10.2001 till 03.03.2006 and they came to know about the ex-parte decree when the notice of execution petition, preferred against them, was served upon them. Labh Singh petitioner was cross-examined at length. Even Ram Lal, process server, who appeared in the witness box, has also stated that Harchand Singh was served in execution on 14.01.2006 and this appeal has been filed on 27.03.2006. Though Atul Kashyap, for the reasons best known to him and in order to avoid the complications for his representation before the petitioners, earlier did not support the cause of the respondents yet the plea set up by the petitioners appears to be genuine one. They were not benefitted by filing the delayed appeal. The exparte decree was passed on 06.09.2005 and the appeal was preferred on 27.03.2006, obviously after receipt of the summons in execution on 14.01.2006. The petitioners must have collected the copy of judgment and decree and thereafter filed the Civil Revision No.4517 of 2010 4 appeal. Thus, they cannot be condemned for the misrepresentation made by their counsel as well as respondents. The Apex Court in case State of Nagaland versus Lipok AO & others 2005 (3) SCC 752 observed that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona-fide or was merely a device to cover an ulterior purpose. The Apex Court in case O.P.Kathpalia versus Lakhmir Singh 1984 (2) RCR (Rent) 201 : 1984 (4) SCC 66 , consisting a bench of three Judges, had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji, (1987) 2 SCC 107, a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the Court to do substantial justice to the parties by disposing of matters on merits. The expression “sufficient cause” is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice – that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression “every day's delay must be explained” does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. 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- Civil Revision No.4517 of 2010 5 deliberate delay. 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 he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned. The petitioners, being a Society, has come forward with a specific and certain plea that they had been mislead by their counsel as well as respondents on account of the sale deeds in their favour. The meritorious claim of the Society is likely to be at peril if it is not allowed to be heard on merits. Thus, in view of the fact that sufficient cause has been shown by the Society for filing the delayed appeal, the delay is liable to be condoned. Resultantly, the present petition is accepted; impugned order is set aside and the delay in filing the appeal stands condoned, subject to payment of Rs.5,000/- as costs. The parties are directed to appear before the trial/Appellate Court on 04.04.2011. 25.02.2011 (A.N.Jindal) mamta-II Judge Civil Revision No.4517 of 2010 6 25.02.2011 mamta-II