CR No.5833 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR No. 5833 of 2003 Date of decision:- 10.12.2010 General Manager, P.R.T.C. And another. ....Petitioners Vs. Darshan Singh ....Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present:- Mr. R.S. Ahluwalia, Advocate, for the petitioners. Mr. H.S. Bhullar, Advocate, for the respondent. HEMANT GUPTA, J (ORAL) ****** The defendant is in revision aggrieved against the order passed by the learned trial court on 06.09.2003, whereby an application for setting aside the exparte judgment and decree dated 18.03.2002 was dismissed. The plaintiff-respondent filed a suit for declaration challenging the order of termination dated 31.08.1998. In the said suit defendants-petitioners had engaged Shri K.S. Waraich, as an Advocate. It was on 29.11.2001, the defence of the petitioners was struck off as written statement was not filed. Subsequently, as the exparte judgment and decree dated 18.3.2002 was granted. An application for setting aside the CR No.5833 of 2003 2 judgment and decree was filed on 31.08.2002. It was pleaded that Shri Waraich, the counsel engaged by the petitioner fell ill in August, 2001; became serious in November, 2001 and unfortunately died on 08.12.2001. It is pleaded that record was sent to the counsel for preparing written statement, but the same could not be prepared due to his ailment. It was only on 02.08.2002, the petitioners came to know about the exparte judgment and decree and thereafter, after engaging another counsel and inspection of the records, the application for setting aside the exparte judgment and decree was filed. Learned trial court has found that it was the duty of the petitioners to remain in touch with Shri K.S. Waraich, Advocate, and since the defendants intentionally remained silent over the matter, therefore, the exparte judgment and decree dated 18.03.2002 cannot be set aside. Having heard learned counsel for the parties at length, I am of the opinion that the order passed by the learned trial court suffers from patent illegality and irregularity and has caused substantial injustice to the petitioners. It is a case where the counsel for the defendants has died on 08.12.2001 i.e. soon after the defence of the petitioners was struck off for not filing the written statement. It is the case of the petitioners that the record was sent to Shri K.S. Waraich, Advocate, for preparing of written statement, but because of his illness, the written statement could not be filed. The question, as to whether there exists sufficient CR No.5833 of 2003 3 reasons to condone the delay in filing of the application has been explained by the Hon'ble Supreme Court in N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC, 123. It has been held that there has to be some carelessness and negligence in conduct of the proceedings which leads to delay, but all carelessness and negligence cannot be made ground for declining condonation of delay. It is held that lack of bonafide and likelihood of some gain by delaying the proceedings may be the reason to decline condonation of delay. It has been held to the following effect:- 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 Vs. Kuntal Kumari, AIR 1969 SC 575 and State of W .B. Vs. 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 CR No.5833 of 2003 4 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 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 the present case the petitioner is a public sector undertaking and has taken reasonable steps to defend its interest. May be they should have been more careful and vigilant in prosecuting its interest. But carelessness and negligence does not mean that there was lack of bonafide or that the petitioners wanted to gain by delaying the proceedings. In view of the said fact, I find that the petitioners have disclosed sufficient reasons for condonation of delay in filing of the application and also for setting aside of the judgment and decree dated 18.03.2002. Consequently, order passed by the learned trial court on 06.09.2003 and exparte judgment and decree dated 18.03.2002 are set aside while allowing the revision petition. The matter is remitted back to the learned trial court to decide the suit afresh in accordance with law. CR No.5833 of 2003 5 The petitioners shall file written statement before the trial court on 7.2.2011. If the petitioners fail to file written statement before the learned trial court on the date fixed, the defence of the petitioners shall be struck off. Parties through their counsel are directed to appear before the learned trial court on 7.2.2011. (HEMANT GUPTA) 10.12.2010 JUDGE aj