CR No.5918 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5918 of 2001 Date of decision: 13-10-2009 Balwant Singh and others ....Petitioners VERSUS Gurdev Singh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present: Mr. H.S. Dhandi, Advocate, for the petitioners. Mr. Arihant Jain, Advocate, for the respondents. AJAY KUMAR MITTAL, J. (Oral) In this revision petition filed by the defendants, the order dated 3.10.2000 passed by the lower appellate court dismissing the application for condonation of 18 days' delay in filing the appeal has been assailed. Briefly the facts relevant for the decision of this revision petition are that the plaintiffs-respondents filed a suit for permanent injunction against the defendants-petitioners on 8.9.1997 which was decreed by the trial court on 14.12.1998. The application for supply of certified copy of the aforesaid judgement and decree was moved by the defendants-petitioners on 28.01.1999 which was supplied on 30.1.1999 and appeal was filed before the lower appellate court on 1.2.1999. The limitation for filing the appeal was up to 13.1.1999, and therefore, the appeal filed before the lower appellate court was CR No.5918 of 2001 -2- delayed by 18 days. Learned counsel for the petitioners submitted that the counsel for the defendants had appeared on 14.12.1998 before the trial court and the counsel was under the impression that the case had been adjourned for 28.01.1999 as it was to be heard along with other connected case which was filed under Order 39 Rule 2A of the Code of Civil Procedure by the plaintiffs-respondents whereas the suit had been decided on 14.12.1998. It was in these circumstances that the delay of 18 days had occurred in filing the appeal. Learned counsel further submitted that the delay was neither intentional nor wilful but had resulted due to the misunderstanding of the counsel who was representing them before the trial court. The learned counsel placed reliance on the judgments of the Apex Court in Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, 1987 SC 1353 and Vedabai alias Vaijayantabai Baburao Patil v. Shantaram Baburao Patil and others, AIR 2001 SC 2582 in support of his submissions and prayed that delay of 18 days be condoned. On the other hand, counsel for the plaintiff-respondent vehemently controverted the submissions of the learned counsel for the petitioners and submitted that a vested right had accrued in favour of the plaintiff-respondent and, therefore, the order passed by the lower appellate court was perfectly justified. I have heard learned counsel for the parties and have given my thoughtful consideration to the submissions made by the learned CR No.5918 of 2001 -3- counsel for the parties. This Court while considering the issue regarding condonation of delay in filing an appeal in Civil Revision No.6134 of 2004 recorded as under:- “The Apex Court in Vedabai alias Vaijayantabai Baburao Patil's case (supra) held that the court while exercising the powers under Section 5 of the Act should adopt a pragmatic approach and exercise the discretion on the facts and circumstances of each case keeping in mind that the expression “sufficient cause” should be interpreted liberally while imparting substantial justice. The relevant observations of the Apex Court read thus:- “In exercising discretion under S. 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause', the principal of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under S. 5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression 'sufficient cause' should receive liberal construction, in catena of decisions (See CR No.5918 of 2001 -4- State of West Bengal v. Administrator, Howrah Municipality (1972) 1 SCC 366: (AIR 1972 SC 749) and Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi (1978) 2 SCC 116: (AIR 1978 SC 537). The High Court in exercising its jurisdiction under S. 115 C.P.C. failed to correct the jurisdictional error of the appellate Court.” Applying the aforesaid guiding principles to the facts of the present case, the order passed by the lower appellate court declining to condone the delay of 18 days in filing the appeal is unsustainable and it cannot be said that there was no sufficient cause for not condoning the delay or that the delay on the part of the petitioners was deliberate or intentional. Accordingly, the present revision petition is allowed. The order dated 3.10.2000 is set aside. The lower appeallate court shall now proceed in the matter in accordance with law. Since the matter is old one, the lower appellate court shall proceed to decide the appeal on merits expeditiously, preferably by 31.03.2010. The parties through their counsels are directed to appear before the lower Appellate Court on 16.11.2009. (AJAY KUMAR MITTAL) 13.10.2009 JUDGE manju