1 10 S.B. CIVIL SECOND APPEAL NO.15/2008. Ramashankar Vs. Rajendra Singh Date of Order :: 30th January 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Dr. Sachin Acharya, for the appellant. Mr. Usman Ghani, for the respondent. ..... BY THE COURT: After hearing the matter for admission, the following substantial question of law was formulated in this case on 28.01.2008:- “Whether in the facts and circumstances of the case, the learned appellate court has erred in rejecting the application submitted by the appellant for condonation of delay in filing the appeal ?” The appeal was admitted for consideration, learned counsel appeared for the sole respondent, and looking to the subject matter of the suit and so also the subject matter of this appeal, it was considered appropriate to take up this appeal for final disposal at this stage. Learned counsel for the parties have been heard in relation to the question aforesaid. Brief facts and aspects relevant for the present purpose are that the suit for eviction and recovery of arrears of rent as filed by the plaintiff-respondent against the appellant has been 2 decreed by the learned Civil Judge (Junior Division) (West), Bhilwara on 14.07.2006 after finding the appellant-tenant a defaulter in payment of rent and being not entitled to the benefit of Section 13(6) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 for his defence against eviction having already been struck out. The learned trial court has also found the appellant-tenant liable for eviction for his having denied the title of the plaintiff to the suit property. The learned trial court has also decided other material issues in favour of the plaintiff including the fundamental issue on the question of existence of the relationship of landlord and tenant between the parties. An appeal against the judgment and decree so passed by the learned trial court was presented to the learned appellate court only on 18.12.2006 and was reported barred by 97 days. The appellant submitted an application under Section 5 of the Limitation Act for condonation of delay with the submissions that he fell ill while being at Raghunathpur (Uttar Pradesh) and thereafter met with an accident, was under treatment for the injuries sustained in the accident, and remained confined to bed and then, his wife fell ill who was required to be taken to several places for treatment and, therefore, he could not establish contact at Bhilwara and then, he came to Bhilwara on 11.12.2006 and filed the appeal without further delay after obtaining copies. The application so moved by the defendant- appellant was supported by his affidavit and was accompanied 3 with a treatment slip dated 24.07.2006 of Primary Health Centre, Baragaon, Varanasi and another outdoor patient slip of Mahatma Gandhi Arogya Sadan, Bhilwara dated 06.12.2006. The application aforesaid was put to contention by the plaintiff-respondent on the submissions, inter alia, that the appellant has failed to show sufficient cause for delay in filing the appeal; that the appellant and his wife were quite hale and hearty and were moving around without any ailment; that the appellant has not filed any specific medical certificate in support of the averments stated in the application. It was also stated that the applicant resides at Bhilwara hardly for one or two months in a year and has not resided at Bhilwara for last three years. The learned appellate court has proceeded to reject the application seeking condonation of delay as moved by the appellant fundamentally on the considerations that the averments as taken in the application are not supported by requisite medical evidence in the form of any particular certificate or specific treatment memos. It has also been observed that the ticket dated 24.07.2006 states only of prescription of one medicine and not even of the ailment. It has further been observed that the averment as taken by the appellant, of his having come to Bhilwara only on 11.12.2006, stands in contradiction to his case that on 06.12.2006 he obtained treatment at Bhilwara as per the outdoor patient slip. The learned appellate court has also observed that the appellant has 4 not produced any documentary proof in relation to the alleged ailment and treatment of his wife. The learned appellate court has observed that the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. : AIR 1987 SC 1353 was to the effect that the matter ought to be decided on merits and the interest of justice should not be defeated on technical grounds but then, according to the learned appellate court the appellant was guilty of gross negligence and of stating false reasons for condonation of delay, has intentionally delayed filing of the appeal, and has not produced documentary proof in relation to the averments taken in the application. For such flaws in the case of the appellant and for such shortcomings in his conduct, the learned appellate court has proceeded to reject application for condonation of delay and has consequently dismissed the appeal filed by the appellant by the impugned order dated 20.11.2007. Learned counsel for the appellant has placed for perusal the certified copies of the proceedings, pleadings and evidence in relation to the suit in question and so also the copies of the proceedings before the learned appellate court and the copies of the application and the documents filed by the appellant. Having heard learned counsel for the parties, and having perused the impugned order and other material placed by the learned counsel for the appellant for consideration, this Court is of opinion that the approach of the learned appellate court could 5 only be said to be pedantic and unrealistic; and not in accord with the preference of the courts to decide the matters on merits rather than on technicalities; and, therefore, the impugned order cannot be sustained. An application for condonation of delay, when moved for consideration during the course of any legal proceedings, is required to be approached from realistic point of view and not as if to put the parties to a thorough trial on each and every aspect of the cause for delay and then to seek concrete proof in relation to the cause for every day's delay. It is always preferred to decide a matter on merits rather than throwing any party out on technicalities. In the present case, in the overall comprehension of the matter, the interest of justice would definitely have been served if the learned appellate court would have proceeded to consider the case on merits rather than rejecting the application for condonation of delay of 97 days in filing the appeal. The learned appellate court has commented on want of requisite proof in relation to the ailment of the appellant and his wife and has posed questions on the probative value of the treatment slips as produced by the appellant. The learned appellate court has also taken the appellant untruthful for the reason that he stated of making contact at Bhilwara only on 11.12.2006 whereas the treatment slip produced by him shows his having received treatment at Bhilwara on 06.12.2006. The learned appellate court has failed to consider the fundamental of 6 the fact that such treatment slips do indicate that the appellant had been ailing and did visit hospitals at different places. The appellant has not been shown to be a person conversant with all the requirements of law and could not have been non-suited only for his not producing cogent and concrete evidence in support of the averments as taken in the application for condonation of delay including the averment regarding illness, of himself and his wife. It is also noteworthy that even according to the showings of the respondent-plaintiff, the appellant has not been in Bhilwara for last three years. Taking such averments on their face value would only fortify the stand of the appellant that he could not establish contact with his lawyer at Bhilwara earlier. The suit had been filed for eviction and recovery of arrears of rent and it appears from the averments taken before the learned trial court that one of the fundamental contention of the appellant had been of his not standing in relationship of tenant with the plaintiff concerned. Though it is also noticed that the defendant-appellant has not led any evidence before the learned trial court and his defence against the eviction has also been struck out; yet, without commenting on the merits of the case, this Court is of opinion that interest of justice would be served if the appellant is extended an opportunity of hearing before the learned first appellate court. In view of the aforesaid, the question aforesaid is answered in the affirmative and it is held that the learned 7 appellate court has erred in rejecting the application for condonation of delay in filing the appeal. Accordingly, this appeal is allowed; the impugned order dated 20.11.2007 is set aside; the application filed by the appellant for condonation of delay is allowed; and the appeal filed by the appellant shall stand restored before the learned first appellate court for consideration on merits. Learned counsel appearing for the respondent has prayed that the learned appellate court may be directed to decide the appeal at an early date. Having regard to the circumstances of the case and the subject matter of litigation, it is of course expected of the learned first appellate court to explore the possibility of deciding the appeal at the earliest. The parties shall appear before the learned first appellate court on 08.02.2008 and shall stand noticed for such appearance through their counsel appearing before this court. The papers as supplied by the learned counsel for the appellant for perusal be returned. There shall be no order as to costs of this appeal. (DINESH MAHESHWARI), J. Mohan/