IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CR 130 of 2001. Date of decision 4.3.2008. Tilak Raj ….Petitioner/Defendant. Versus Bhagwat Kishore …..Respondent/Plaintiff. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting? No. For the petitioner Shri G.C.Gupta, Sr. Advocate, with Ms. Benu Thakur, Advocate. For the respondent Shri Inderjit Singh, Advocate. Dev Darshan Sud, J. (Oral). This revision is preferred against the judgment and order of the learned Additional District Judge, Shimla passed on 1.3.2001, affirming the order of the learned Sub Judge, Court No. 1, Shimla in Civil Suit No. 482/1 of 1995, decided on 1.5.1997, granting an ex parte decree in favour of the respondent-plaintiff. It is undisputed before me that ex parte Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - decree was passed against the petitioner by the learned trial Court. The appeal out of which the present revision petition arises was instituted by the defendant-appellant. It was accompanied by an application under Section 5 of the Limitation Act for condonation of delay. The learned appellate Court framed an issue as to whether there were sufficient grounds for condonation of delay in filing the appeal and held that no ground had been made out by the appellant and, therefore, dismissed the application under Section 5 of the Limitation Act. The defendant is now in appeal. I have heard learned counsel for the parties and have gone through the record. Learned counsel appearing for the respondent plaintiff has opposed the request made by the petitioner and submitted that the learned appellate Court while declining to condone the delay has considered the entire evidence which has been brought on record of the case and that no ground for condonation of delay has been made out. - 3 - I do not find any facts on the record which show that the delay is of such a nature that the petitioner has acted in a manner suggesting malafides. In Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 the Hon’ble Supreme Court held: AIR 1987 SC 1353 the Hon’ble Supreme Court held: “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 - 4 - substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done being done because of a non deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. 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.” Again in M.K.Prasad v. P. Arumugam, (2001) 6 SCC 176 it was held: “In construing Section 5 of the Limitation act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal & Ors. v. - 5 - Rewa Coalfields Ltd. [AIR 1962 SC 361] held: "Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period…"? ………..7. In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- - 6 - heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. “ The Hon’ble Supreme Court has laid down in more than one case that the expression “sufficient cause” should receive a liberal interpretation. In Vedabai alias Vijayanatabai Baburao Patil v. Shantaram Baburao Patil and others, (2001) 9 SCC 106, reversing the judgment of the High Court which had adopted a strict view of interpretation of the provisions, the Court held: “In exercising discretion under Section 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 - 7 - 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 principle of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Additional District Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under Section 5 of the Limitation Act is exercised by the Additional District Judge in contravention of the law laid down by this Court, that the expression “sufficient cause” should receive liberal construction, in a catena of decisions (see State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366 and Sandhya Rani Sarkar v. Sudha Rani Debi (1978) 2 SCC 116). The High Court in exercising its jurisdiction under Section 115 CPC failed to correct the jurisdictional error of the appellate Court.” - 8 - The precedent need not be multiplied as it has been applied by number of High Courts. (See Sreenivas Charitable Trust v. Deputy Commissioner of Income-Tax, (2006) 280 ITR 357 (Mad) and CIT v. Orissa Concrete and Allied Industries Ltd. (2003) 264 ITR 186). I do not find that the delay is of such a nature which indicates that the petitioner has acted in a manner suggesting malafides. A distinction must be made between a case where the delay caused is deliberate and inordinate and a case where it is caused in circumstances which are not entirely of the making on the petitioner or such over which he has a very little control. 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’, - 9 - the principle of advancing substantial justice is of prime importance. One other factor needs to be taken notice of and that is that this Court by its order dated 5.9.2001 had ordered that: “……In view of the admission of the revision petition, facts and circumstances of the case and the time the present revision petition is likely to take for its disposal, the execution of the impugned decree shall remain stayed till the disposal of the revision petition subject to the petitioner’s furnishing security in the sum of Rs.10,000/- to abide by the decree, if any, which may be ultimately binding on him, to the satisfaction of the trial Court, within six weeks..” Initially I was inclined to dismiss the revision petition primarily for non compliance of this order. However, taking into consideration the entirety of circumstances and the explanation given by learned counsel for the petitioner that the non compliance is not deliberate but on account of the inability of the petitioner to furnish the security because of his financial condition, the revision - 10 - petition is disposed of on merits with the following directions: (1) The judgment and order passed on 1.3.2001, subject matter of this revision petition is quashed and set aside. The delay in filing the appeal is condoned in the interest of justice. A direction is issued to the learned District Judge to readmit the appeal on its record and to proceed with it in accordance with law with expedition. (2) Considering that the matter pertains to the year 1997, the learned District Judge shall proceed with expedition in the matter and dispose it of at the earliest. . (3) The petitioner herein shall furnish security as ordered by this Court on 5.9.2001 within a period of eight weeks from today. No extension of time shall be granted by the learned District Judge for complying with this direction. In case of non furnishing of security, proceedings before the learned District Judge shall stand closed and this revision petition will be deemed to have been dismissed and all necessary consequences shall follow. (4) CMP 549 of 2007 moved by one Gian Kaur shall be taken on record by the learned District Judge and decided in accordance with law. Parties are directed to appear before the learned District Judge on 16.4.2008. The Registry - 11 - is directed to send the entire record to learned District Judge along with copy of CMP 549 of 2007 forthwith. The revision petition stands disposed of accordingly. There shall be no order as to costs. March 4, 2008 (PC). (Dev Darshan Sud), J.