Civil Revision No. 1010 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1010 of 2010 (O&M) Date of Decision: 19.8.2010 Gurdev Singh and others .....Petitioners Versus Major Singh and others …. Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri R.N. Singal, Advocate, for the petitioners. Shri P.K. S. Phoolka, Advocate, for the respondents. Hemant Gupta, J. (Oral) Challenge in the present petition is to the order dated 7.10.2009 passed by the learned first Appellate Court, whereby delay of 6 days’ in filing the appeal was not condoned and consequently the appeal was dismissed being barred by limitation. The plaintiff-petitioners filed a suit for permanent injunction which was decided on 12.2.2009. The plaintiff-petitioners applied for certified copy of the judgment on 16.2.2009, which was prepared on 17.2.2009. The copy was delivered to the petitioners on 3.3.2009. The appeal was filed on 21.3.2009 i.e. after the delay of 6 Civil Revision No. 1010 of 2010 (O&M) [2] days. In the application seeking condonaton of delay, the learned first Appellate Court, has framed has framed the issue `whether sufficient cause is made out for condoning delay’. After giving opportunities to the parties to lead evidence, the first Appellate Court dismissed the application seeking condonation of delay vide the order impugned in the present petition. Prior to the amendment in the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976, the delay could be condoned even on an oral prayer. It was so held by the Division Bench of this Court in a judgment reported as Partap Singh v. State of Haryana and another 1979 PLJ 48. It was held to the following effect:- “4. ……On the fact and circumstances of the case, we are of the considered opinion that this is a fit case where a finding be returned that Shanti Devi was prevented by sufficient cause from putting an application within time. We also find that it is not necessary for her to make a written application under Section 5 of the Limitation Act for the condonation of delay as an oral prayer can be taken into consideration. 5. Keeping in view the facts and circumstances of the case, our view finds support from a Division Bench decision of the Allahabad High Court in Smt. Shakuntala Devi v. Banwari Lal and others, AIR 1977 Allahabad 551, and a Single Bench decision of this Court in Firm Kura Mal Bishan Dass v. Firm Mathra Dass Atma Ram, AIR 1959 Punjab 646.” By the aforesaid amending Act, Rule 3-A was incorporated in Order 41, which contemplated that when an appeal is presented after the period of limitation, it shall be accompanied by an application to seek condonation of delay supported by an affidavit. Rule 3-A of Order 41 of the Code of Civil Procedure, reads as under:- “O.41 Rule 3-A. Application for condonation of delay.- (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit Civil Revision No. 1010 of 2010 (O&M) [3] setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be. (3) Where an application has been made under sub- rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.” In terms of Order 41 Rule 3-A of the Code of Civil Procedure, the application is required to be accompanied by an affidavit. In terms of Order 19 Rule 1 of the Code of Civil Procedure, if it appears to the Court that either party bona-fide desires the production of a witness for cross-examination, the executant of affidavit can be called. But whether, without recording satisfaction and without any desire of any party to cross-examine the witness, the Court can direct the party to lead evidence is the question arising for consideration of this Court. In Birendra Nath Singh v. Santa Devi and others, AIR 1992 Patna 146, a Single Bench of the Patna High Court has held that leading of oral evidence while adjudicating an application under Order 41 Rule 3(2) is not permissible. The question of limitation is to be decided on the basis of affidavits on record. It was held to the following effect:- “10. Leading of oral evidence while adjudicating an application under Order XIL R.3(2) of the Code of Civil Procedure or S.5 of the Limitation Act, is not permissible. The question of limitation is being decided on the basis of the affidavits. The plea of leading oral evidence, in my view, in the peculiar facts and circumstances, was correctly not allowed in as much as it was open for the petitioner first to have filed the affidavits of the persons named by him in the limitation Civil Revision No. 1010 of 2010 (O&M) [4] petition or in any view of the matter no sooner the rejoinder was filed and not after the close of arguments on 6.12.1990 and while giving reply on 7.12.1990.” This Court in Sukh Sagar v. Hem Raj, 1995(3) PLR 62, has held that though Order 41 Rule 3-A of the Code of Civil Procedure requires an application to be accompanied by an affidavit, but it was found that where the facts stated in an application could be accurately ascertained from the Court records either judicial or administrative, it would not be incumbent that an affidavit in support of application seeking condonation of delay must also be filed. Such requirement would be dependent on the facts of each case. The legislature, while inserting Rule 3-A in Order 41 of the Code of Civil Procedure, provided that the same shall be accompanied by an affidavit. It is, thus, intended that the application for condonation of delay is not to be tried as an independent proceeding on the basis of oral evidence, but such question should be decided on the basis of affidavit(s) alone. In terms of the provision of Order 19 of the Code of Civil Procedure, where it appears to the Court that either party bona-fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall be made authorizing the evidence of such witness to be given by affidavit. Such course could be adopted for the reasons to be recorded by the Court on its satisfaction and bona-fides of the parties desiring the production of a witness for cross-examination. 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 condonaton of 6 Civil Revision No. 1010 of 2010 (O&M) [5] 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 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 Civil Revision No. 1010 of 2010 (O&M) [6] 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 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 Civil Revision No. 1010 of 2010 (O&M) [7] 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 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, common- sense, 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.” Civil Revision No. 1010 of 2010 (O&M) [8] The Hon’ble Supreme Court in State of M.P. and another v. 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. In view of the above, the present revision petition is allowed. The impugned order passed by the learned first Appellate Court is set aside. The delay of 6 days’ in filing the appeal is condoned and the matter is remitted back to the learned first Appellate Court, for decision afresh on merits, in accordance with law. [ HEMANT GUPTA ] JUDGE 19.8.2010 ds