CR No. 6305 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 6305 of 2009 Date of decision:- 31.8.2010 Ramesh Chand ......petitioner vs. State of Punjab and others ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. R.P.Kansal, Advocate for the petitioner Mr. M.C. Berry, Addl. AG, Punjab HEMANT GUPTA, J (ORAL) Challenge in the present revision petition is to the order passed by the learned first Appellate Court on 18.2.2009 whereby the delay of 32 days in filing of the appeal was not condoned for the reason that the statement of the petitioner is uncorroborated and cannot be relied upon. The order passed by the learned first Appellate Court to say the least is perverse. It is the case of the petitioner that he applied for certified copy of the judgment and decree on 9.4.2007 which was delivered on 20.4.2007. The mother of the petitioner aged 79 years was not feeling well and therefore she has to be hospitalized. The petitioner filed the appeal on 25.5.2007 after the delay of 32 days. The petitioner could not file appeal on account of illness of her mother. To decide application for condonation of delay, learned first Appellate court has framed issues as to whether sufficient causes are made out for condonation of delay. After giving opportunities to parties to lead evidence, the Court dismissed the application. CR No. 6305 of 2009 -2- This Court on 19.8.2010 in CR No. 1010 of 2010 titled as Gurdev Singh and others vs. Major Singh and others has taken the view that application for condonation of delay is an application on which, the parties should not be called to lead evidence. Such applications should be decided on the basis of affidavits alone. The framing of the issues and leading of evidence is not warranted at this stage to consider whether the delay in filing of the issues is condoned or not. It was held to the following effect: - The application for condonation of delay is not an application on which, the parties can be called upon to lead evidence. Such applications should be decided on the basis of affidavits alone. The learned first Appellate Court has failed to act judiciously while considering the application for condonation of delay of 6 days. Firstly, there was no reason to frame issues and directing the parties to lead evidence to decide the application seeking condonation of 6 days’ delay in filing the appeal. Such question should have been decided on the basis of affidavits alone. The Court has declined the application seeking condonation of delay on account of the fact that petitioners have not explained each day’s delay. The said approach of the learned first Appellate Court is against the well settled principles of law laid down by the Hon’ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, wherein, it has been held to the following effect:- “11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of CR No. 6305 of 2009 -3- the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of W.B. v. Administrator, Howrah Municipality, (1972)1 SCC 366. 13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the CR No. 6305 of 2009 -4- court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” In State of Nagaland v. Lipok Ao and others, (2005) 3 SCC 752, it was held by the Hon’ble Supreme Court to the following effect:- “9. What constitutes sufficient cause cannot be laid down be hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840 this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156 it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. xx xx xx 12. In O.P. Kathpalia v. Lakhmir Singh, (1984)4 SCC 66 a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do CR No. 6305 of 2009 -5- substantial justice to the parties by disposing of matters on merits. The expression “sufficient cause” is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice — that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression “every day’s delay must be explained” does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, commonsense, pragmatic manner. 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. There is no presumption that delay is occasioned 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. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned.” The Hon’ble Supreme Court in State of M.P. and another v. CR No. 6305 of 2009 -6- Pradeep Kumar and another, (2000)7 Supreme Court Cases 372, has held that even a vigilant litigant is prone to commit mistakes and therefore, for unintentional lapse on the part of the litigant should not normally cause the doors of the judicature permanently closed. It was held to the following effect:- “12. It is true that the pristine maximum vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those, who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism “to err is human” is more a practical notion of human behavior than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.” In view of the judgments mentioned above, the finding that the petitioners have not explained each day’s delay, cannot be sustained in law. The explanation of the petitioners does not smack of mala-fide nor it has put forth any dilatory strategy. In the absence of any finding that the delay was occasioned by the petitioners deliberately to gain time, the Court should have condoned the delay. The suit has been dismissed and the petitioner was not likely to gain in filing of the appeal with delay. The reasons recorded in the order passed by the learned first Appellate Court are patents illegal, unwarranted and thus cannot be sustained in law. Consequently, the revision is allowed. The order passed by the learned first Appellate Court dated 18.2.2009 is set aside. The matter is remitted back to the learned first Appellate Court for decision on merits. CR No. 6305 of 2009 -7- Parties are directed to appear before the first Appellate Court on 11.10.2010. Disposed of in the above terms. (HEMANT GUPTA) JUDGE 31.8.2010 preeti