CR No. 6134 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 6134 of 2004 Date of Decision: 15.7.2009 Union of India and others ....Petitioners. Versus M/s Kapoor Medical Store ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Anil Rathee, Advocate for the petitioners. None for the respondent. AJAY KUMAR MITTAL, J. Union of India and others, who were defendants in the civil suit, have filed this revision petition against the judgment and decree dated 9.10.2004 passed by the Additional District Judge, Sonepat, whereby the application filed under Section 5 of the Limitation Act, 1963 (for short “the Act”), along with the appeal, for condonation of 40 days' delay in filing the appeal before the lower appellate court was declined and resultantly, the appeal was also dismissed. Briefly, the facts of the case are that the plaintiff-respondent filed a suit for declaration with consequential relief of permanent and mandatory injunction on 15.3.1999 against the petitioner-defendants which was decreed by the trial court vide judgment and decree dated 5.3.2003. The petitioner-defendants applied for certified copy of the CR No. 6134 of 2004 -2- judgment and decree of the trial court on 22.4.2003 which was prepared and delivered on 23.4.2003. Thereafter, the appeal under Section 96, Code of Civil Procedure, along with an application under Section 5 of the Act for condonation of 40 days' delay in filing the appeal was filed on 14.5.2003 in the lower appellate court. The lower appellate court dismissed the application as well as the appeal. Learned counsel for the petitioners has submitted that the delay was neither intentional nor wilful but the same was attributable to the counsel representing the petitioners before the trial court for not applying for certified copy of the judgment and decree dated 5.3.2003 passed by the trial court promptly. Therefore, for fault of the counsel, the petitioners should not be made to suffer. Moreover, from a perusal of the facts of the case, it cannot be said that the petitioners were not vigilant in pursuing this case. He has placed reliance upon the judgments of the Apex Court in Collector, Land Acquisition, Anantnag and another v. 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. A perusal of the file shows that the respondent was ordered to be served by way of substituted service. In spite of the substituted service, no one has appeared on behalf of the respondent. I have heard the learned counsel for the petitioners and have perused the record. 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 CR No. 6134 of 2004 -3- 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 State of West Bengal v. CR No. 6134 of 2004 -4- 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 judgment passed by the lower appellate court declining to condone the delay of 40 days' in filing the appeal cannot be sustained 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 defendant- petitioners in approaching the lower appellate court was deliberate or intentional. Accordingly, the present revision petition is allowed and the judgment and decree dated 9.10.2004 is set aside. The lower appellate court shall now proceed in accordance with law to decide the appeal on merits after issuing notice to the plaintiff-respondent. The defendants through their counsel are directed to appear before the lower appellate court on 2.9.2009 for further proceedings in the matter in accordance with law. July 15, 2009 (AJAY KUMAR MITTAL) gbs JUDGE