C.R No. 6200 of 2006 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 6200 of 2006 Date of decision : February 12, 2008 Jagdish Chand, ...... Petitioner through Mr.Vijay Sharma, Advocate v. Dakshin Haryana Bigli Vitran Nigam Limited & others ...... Respondents through Mr.Narinder Hooda, Advocate CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** RAJIVE BHALLA,J Challenge in this revision petition is to an order, dated 6.9.2006, passed by the learned Additional District Judge, Narnaul, dismissing the petitioner's appeal, being barred by limitation. The petitioner filed a suit for grant of decree of mandatory injunction with respect to his service. The Additional Civil Judge (Senior Division), Narnaul, vide judgment, dated 1.9.2005, dismissed the suit. The petitioner filed an appeal, namely, Civil Appeal No.16 of 2006 on 28.1.2006. As the appeal was barred by limitation, it was accompanied by an application, under Section 5 of the Limitation Act, praying for condonation of delay of 150 days in the filing of the appeal. The appellate Court, vide the impugned order, dismissed the application and consequently C.R No. 6200 of 2006 ::2:: the appeal. Counsel for the petitioner submits that the suit was dismissed on 1.9.2005. The petitioner applied for a certified copy of the judgment on 16.12.2005. The certified copy was prepared on 17.12.2005 and delivered to the petitioner on 24.12.2005. Limitation for filing of the appeal expired on 1.10.2005. The appeal was filed on 28.1.2006 with a delay of 150 days. It is submitted that delay in the filing of the appeal was occasioned by circumstances beyond the control of the petitioner. The petitioner was electrocuted on 22.8.2005, while on duty at village Begpur, fell down from an electric pole and fractured ribs No.4, 5 and 6. He was admitted to Government Hospital Ateli for one day and thereafter was referred to SMS Medical College Hospital, Jaipur for further treatment. Though the petitioner was discharged on 28.8.2005, he remained under treatment at Krishna Hospital, Rewari on different dates i.e 21.9.2005, 28.10.2005, 27.11.2005, and 20.12.2005. During this period, the suit was dismissed. The petitioner had no knowledge of the dismissal of the suit. He was informed by his office of the dismissal of the suit on 23.12.2005 and, therefore, immediately approached his Advocate, who handed over to him a certified copy of the judgment. The appeal was thereafter filed on 28.1.2006. Counsel for the petitioner submits that in view of the medical condition of the petitioner, and the fact that he was not aware about the dismissal of the suit, the learned appellate Court should have condoned the delay. Upon receiving information on 23.12.2005 of the dismissal of his suit, the petitioner immediately obtained a certified copy of the judgment and filed an appeal on 28.1.2006. It is submitted that as the petitioner has C.R No. 6200 of 2006 ::3:: successfully established sufficient cause, the learned appellate Court erred in dismissing the application for condonation of delay. It is further argued that the petitioner's explanation for the delay was bona fide. Even otherwise, the petitioner had nothing to gain from delaying the filing of the appeal. It is, therefore, prayed that delay in the filing of the appeal be condoned and the learned appellate Court be directed to decide the appeal on merits. Counsel for the respondents, on the other hand, submits that delay of 150 days in filing the appeal should not be condoned. The suit was dismissed on 1.9.2005, whereas, even as per the petitioner's assertion, he was electrocuted on 22.8.2005 i.e prior to the dismissal of the suit. It is submitted that the petitioner has failed to place on record any cogent evidence with respect to his medical treatment. Even otherwise, as certified copy of the judgment and decree was applied for after the expiry of the period of limitation, the impugned order be upheld and the revision petition be dismissed. I have heard counsel for the parties and perused the paper book. A perusal of the impugned order discloses that the petitioner has placed evidence on record, that evidences his fall from an electric pole and the fracture of his 4th, 5th and 6th ribs. He was admitted to Government Hospital for one day and thereafter to SMS Medical College Hospital, Jaipur from where he was discharged on 28.8.2005. The petitioner's assertions that thereafter he was under treatment on different dates i.e 21.9.2005, 28.10.2005, 27.11.2005, and 20.12.2005, have been sufficiently established. The correctness of these assertions has not been denied by the respondents. There was no reason for the petitioner to intentionally delay C.R No. 6200 of 2006 ::4:: the filing of the appeal, as he did not stand to gain any unfair advantage. The learned appellate Court ignored the principles that govern the exercise of power to condone delay, namely, that where the explanation is bona fide and credible, delay should generally be condoned. The principles that govern the power to condone delay, have been set out by the Hon'ble Supreme Court in Naubat Ram Sharma vs Additional District Judge II, Moradabad and others, AIR 1987 SC 1352, which read as follows :- “1. Ordinarily 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 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 C.R No. 6200 of 2006 ::5:: 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. 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.” A perusal of the impugned order discloses that the learned appellate Court did not accept the petitioner's explanation on the ground that there was no medical record after 28.10.2005. The said fact, in my view, was irrelevant. It is not denied that the petitioner suffered a fall from an electric pole, and fractured three ribs. The petitioner has appended his medical record i.e discharge ticket of SMS Hospital, Jaipur, OPD slip of SMS Hospital Jaipur, and OPD slip, dated 21.9.2006 of Shri Krishan Hospital Rewari. The learned appellate Court placed undue reliance on the fact that certified copy of the judgment and decree was applied late. The said fact, though relevant, should have been considered in the context of the petitioner's medical condition, namely, fracture of three ribs, a fact not denied by the respondents. The learned appellate Court instead embarked upon a hyper technical examination of the facts ignoring the above reproduced principles of law. The question herein is not of mathematical exactitude but whether sufficient cause was made out. I am satisfied that the application for condonation of delay discloses cause sufficient to condone the delay in filing the appeal. Consequently, the revision petition is allowed, the delay in C.R No. 6200 of 2006 ::6:: filing the appeal is condoned, and the order, dated 6.9.2006 is set aside. The matter is remitted to the Additional District Judge, Narnaul to decide the appeal on merits. Parties are directed to appear before the aforementioned Court on 17.3.2008. ( RAJIVE BHALLA ) February 12, 2008. JUDGE `kk'