IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1102 of 1999 Date of decision: 13th August, 2009 Des Raj … Petitioner Versus Baba Bhuman Shah Charitable Trust and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Gurinderpal Singh, Advocate for the petitioner. Mr. Vikas Kumar, Advocate for respondents No.1, 3 and 4. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Des Raj petitioner had filed a suit for declaration on 7th February, 1997. The Civil Judge (Jr. Division), Sirsa held that the plaint of the petitioner was hit by Order 7 Rule 11(d) of CPC. Therefore, the plaint was rejected. Aggrieved against the order of the Civil Judge (Jr. Division), Sirsa, petitioner filed Civil Revision No. 3070 of 1998, which was decided on 2nd November, 1998 and the following order was passed: “Learned counsel appearing for respondents has raised an objection that rejection of a plaint under Order 7 Rule 11(d) of Code of Civil Procedure and passing a decree under Sub Section (2) of Section 2 of the CPC cannot be allowed and once it is a decree the revision is not maintainable, and, in fact, is barred under section 115(2) of the Code. The learned counsel appearing for the petitioner submits that he may be permitted to withdraw this petition with liberty to take recourse for filing regular appeal against the judgment dated 23.5.98. Civil Revision No. 1102 of 1999 Liberty prayed for is granted. If an appeal is filed, obviously the fact that the present petitioner was pursuing the wrong remedy would be kept in mind. 2.11.1998 Sd/- Swatanter Kumar, Judge.” A perusal of the order shows that the Court found that appeal is a remedy available to the petitioner and petitioner will be at liberty to urge before the appellate Court for condonation of delay praying that he was pursuing the case in a wrong forum. In consonance with the order dated 2nd November, 1998, an appeal was filed by the petitioner. Along with the appeal, an application for condonation of delay was submitted. The application for condonation of delay was rejected on the ground that the petitioner has not been able to explain delay for the period from 2nd November, 1998 to 20th November, 1998. Counsel for the petitioner submits that time was consumed in obtaining order of the High Court, therefore, delay of 18 days occurred from the date of the order of the High Court till filing of the appeal at Sirsa, district headquarters, place of sitting of lower appellate Court. Counsel for the respondent states that the Civil Judge (Jr. Division), Sirsa had passed the order on 23rd May, 1998 and Civil Revision No. 2070 of 1998 was filed on 24th July, 1998, after lapse of 62 days, whereas the period of limitation for approaching the appellate Court is 30 days. Admittedly, in the present case, petitioner had opted for a wrong forum and under a mistaken legal advice, instead of approaching the appellate Court, had approached this Court by filling revision petition. The revisional Court permitted the petitioner to withdraw the revision petition with liberty to take recourse for filing regular appeal against the 2 Civil Revision No. 1102 of 1999 order dated 23rd May, 1998. Liberty was also granted to the petitioner to urge that delay be condoned, as he had availed the remedy in a wrong forum. The technicalities cannot triumph over the substantial justice. The petitioner has a right of appeal. The appellate Court has the power to condone the delay, if it can be explained. In the facts and circumstances of the case, it will be just in case the delay, which was caused by filing revision and thereafter filing an appeal, is condoned. It can be safely inferred that after the order was passed by the Court for engaging a counsel and filing of appeal, sufficient time is required. Therefore, in the facts and circumstances of the case, order passed by the appellate Court, where delay was not condoned, is set aside. The matter is remanded back to the appellate Court to decide the application for condonation of delay, afresh. For the tough opposition to the prayer of condonation of delay, by Mr.Vikas Kumar, counsel appearing for the respondents, the respondents are required to be compensated, as the delay in filing the appeal has also put them to hardship. Therefore, Rs.5,000/- is assessed as cost. On deposit of the cost of Rs.5,000/-, learned appellate Court below shall proceed with the matter in accordance with provisions of law. With these observations, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE August 13, 2009 rps 3