sa520.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO. 520 OF 2011 ,With CA/12021/2011 Nyaneshwar s/o Shankar Kale. ... APPELLANT. VERSUS TILAKNAGAR INDUSTRIES LTD. THR. MANAGER. ... RESPONDENT. ... Advocate for appellant : Mr.Pardeshi Rajesh M. Advocate for Respondents :Mr. Choudhary Nitin S. for R/sole. CORAM : S.S. SHINDE, J. Dated: December 19, 2011 PER COURT: 1. The learned Counsel for respondent tenders across the Bar, the affidavit-in-reply to civil application, filed on behalf of respondent, which is taken on record. 2. Heard learned Counsel for the appellant and the learned Counsel for respondent. The learned Counsel sa520.11 2 for the appellant invited my attention to the contents of the civil application for condonation of delay, which was filed before the lower appellate Court and submitted that sufficient cause was disclosed in the application for condonation of delay. However, by taking hyper technical view, the lower appellate Court has rejected the application for condonation of delay. The learned Counsel for the appellant invited my attention to the substantial question of law / grounds taken in the memorandum of second appeal and submitted that the delay caused in filing first appeal should have been condoned, thereby allowing the appellant to prosecute the first appeal on merits. 3. On the other hand, the learned Counsel for respondent, relying upon the affidavit-in-reply filed by the respondent, would submit that the delay was not properly explained. Therefore, in absence of sufficient cause disclosed in the application for condonation of delay, the view taken by the District Court is proper and therefore, this Court may not interfere with the sa520.11 3 impugned order in this second appeal. 4. Upon hearing the learned Counsel for the parties and going through the appeal memo, annexures thereto, reply filed by the respondent and other documents placed on record, the following substantial questions of law would arise for consideration in this appeal: i) When adjudication in relation to the valuable rights of the parties in relation to immovable property is involved in the appeal filed by the Appellant, then whether the lower appellate Court has not erred in rejecting the application for condonation of delay filed by the appellant? ii) Whether the court below is justified in precluding the appellant from contesting the suit in relation to immovable properties, on the basis of technicalities? 5. In the case of Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors. Reported in AIR 1987 SC 1353, in paragraph 3, the Apex Court observed: sa520.11 4 “3 The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the Courts 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 mattes instituted in this Court. But the message doe sot appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- (1) Ordinarily a litigant does not stand to benefit by lodging an appeal late; (2) Refusing to condone delay can result in 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 cause would be decided on merits after hearing the parties. sa520.11 5 (3) “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine 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 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. (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.” sa520.11 6 6. It is not in dispute that there was only few days delay in filing first appeal before the lower appellate Court. From perusal of the impugned judgment it appears that one of the grounds which is assigned by the lower appellate Court is that, the appellant herein has failed to mention exact delay and reasons thereof. From perusal of the application for condonation of delay, which is placed on record, it is stated that the applicant / appellant could not collect the amount for expenses towards court fees and for filing appeal. It is specifically stated in the application that the applicant is doing labour work. He came to know about the judgment and order of the trial Court late and thereafter, he met his advocate and requested for filing appeal. It is further stated that the delay was not intentional or deliberate. 7. Therefore, in my opinion, the explanation given in the application for condonation of delay should have been accepted by the lower appellate Court since there was delay of few days. It is true that the sa520.11 7 decisive factor in condonation of delay is not the length of delay, but sufficiency of satisfactory explanation. However, the appellant on oath stated that he is doing labour work and he had no means to file appeal and for expenses of court fees and therefore, liberal approach should have been adopted by the lower appellate Court. Substantial right of party to file appeal should not have been taken away by taking hyper technical view in the matter since there was few days delay. Therefore, in my considered opinion and in the light of the parameters / guidelines laid down by the Apex Court in the case of Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors. (supra), by delaying the proceedings, the appellant has not been benefited, in any manner. Refusal to condone the delay in the present case, may result in merits of the matter being thrown out at the very threshold and cause of justice may be defeated. 8. In the result, second appeal is allowed. The sa520.11 8 impugned judgment and order is quashed and set aside. The delay caused in filing first appeal stands condoned. The lower appellate Court to proceed on merits of the appeal. The parties to appear before the lower appellate Court on 10th January, 2012 for prosecuting the appeal. The prayer of the learned Counsel for the respondent for payment of costs stands rejected in view of the facts and circumstances of this case and since the appellant is a labourer. The second appeal stands allowed accordingly and disposed of. Civil Application also stands disposed of. [ S.S. SHINDE ] JUDGE. ... kadam/*