Civil Revision No.1905 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1905 of 2011(O&M) Date of Decision:13.07.2011 Hardial Singh ......Petitioner Versus Surjit Singh through his GPA Tirath Singh ......Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Harsh Bunger, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) The crux of the facts, which needs a necessary mention for a limited purpose of deciding the core controversy involved in this revision petition and emanating from the record, is that the suit for a decree of permanent injunction filed by Surjit Singh son of Late Sh.Jagir Singh-respondent-plaintiff(hereinafter to be referred as “the plaintiff”) against his brother Hardial Singh-petitioner- defendant(for brevity “the defendant”) was dismissed by the trial Court, through the medium of impugned judgment and decree dated 01.11.2006(Annexure P-1). 2. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the appeal before the first Appellate Court along with an application for condonation of delay of 1½ years under Section 5 of the Indian Limitation Act(for short “the Act”), which was accepted by way of impugned order dated 17.02.2011 (Annexure P-10). 3. The petitioner-defendant did not feel satisfied with the impugned order(Annexure P-10) and preferred the present revision petition. 4. Having heard the learned counsel for the petitioner-defendant, having gone through the record with his valuable assistance and after bestowal of Civil Revision No.1905 of 2011(O&M) 2 thoughts over the entire matter, to my mind, there is no merit in the instant revision petition. 5. Ex facie, the argument of the learned counsel that since, no cogent ground for condonation of 1½ years delay in filing the appeal was made out, so, the impugned order is arbitrary and illegal, is neither tenable, nor the observations of the Hon'ble Apex Court in case Balwant Singh(Dead) Versus Jagdish Singh and others, 2010(3) R.C.R.(Civil) 856, are at all applicable to the facts of the present case, wherein it was observed that Section 5 of the Limitation Act should receive a liberal construction, so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides and deliberate inaction, or negligence on the part of the petitioner. Possibly, no one can dispute with regard to the aforesaid observation, but the same would not come to the rescue of the petitioner. 6. As is evident from the record that the parties to the lis are real brothers. The plaintiff is residing in the United Kingdom, while the defendant is residing in Jalandhar. The plaintiff claimed that he was not having any knowledge of passing such decree. He came to know about it only when the defendant disclosed the dismissal of his suit, during the course of hearing of another suit pending between the parties in other court. Thereafter, his attorney approached his counsel and it revealed that the suit filed by him(plaintiff) was dismissed on 01.11.2006. His attorney rang him at United Kingdom and imparted this information. He requested the attorney to apply for obtaining the certified copy, which was prepared on 31.03.2008 and handed over to his counsel on 09.04.2008, whereas the appeal was immediately filed on 11.04.2008. Meaning thereby, as the dismissal of the suit was not in the knowledge of the respondent, as he was residing in the United Kingdom, at the relevant time, therefore, to me, there are sufficient grounds for condonation of delay in the present case. 7. The fundamental jurisprudence and the basic concept of law of Civil Revision No.1905 of 2011(O&M) 3 limitation is well settled. The Hon'ble Apex Court in cases Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, AIR 2002 Supreme Court 1201 and The State of West Bengal v. The Administrator, Howrah Municipality and others, (1972) 1 Supreme Court Cases 366 : AIR 1972 SC 749, has reiterated that the expression "sufficient cause" within the meaning of Section 5 of the Act should receive a liberal construction when no mala fide is imputable to a party, so as to advance substantial justice. 8. Sequelly, in case Sital Prasad Saxena (dead) by LRs v. Union of India and others, AIR 1985 Supreme Court 1, it was ruled that the Courts should recall that “what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties. 9. Likewise, the Hon'ble Supreme Court in cases N.Balakrishnan v. M.Krishnamurthy, (1998) 7 Supreme Court Cases, 123 and Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others, AIR 1987 Supreme Court 1353, has held that the legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts 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 and enumerated the following principles:- 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 Civil Revision No.1905 of 2011(O&M) 4 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 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. 5. 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. 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.” 10. Therefore, to my mind, in view of the law laid down by the Hon'ble Apex Court, the first Appellate Court has rightly accepted the application of the plaintiff for condonation of delay, by virtue of impugned order dated 17.02.2011, the operative part of which is, as follows:- “After hearing the learned counsel for the parties and going through the documents on record, I have arrived at the conclusion that there are sufficient grounds to condone the delay because it is admitted case of the appellant that appellant is Non Resident Indian. He is living in U.K. Suit of the impugned judgment was being pursued before the learned Trial Court by his attorney Tirath Singh. Perusal of impugned judgment goes to show that presence of attorney of the appellant on the date of pronouncement of judgment has not been recorded. Meaning thereby that Civil Revision No.1905 of 2011(O&M) 5 attorney of the appellant was not present when such judgment and decree was pronounced. It has been argued by the learned counsel for the respondent that attorney of the appellant was the best available witness to say that fact of such judgment was not brought to his knowledge by the counsel for the appellant and thus statement of the appellant cannot be believed. I have considered such submission of the learned counsel for the appellant but do not find any force in the same because attorney of the appellant was also to depose similar facts which have been deposed by the appellant himself. Thus, non-examination of the attorney of the appellant cannot be made ground to disbelieve his statement on oath which is otherwise supported by PW2 Sh.Varinder Verma, Clerk Judicial Record Room, Jalandhar, who proved certified copy of application Ex.A3 dated 05.03.2008 and certified copy of reply Ex.A4 according to which in another suit filed as Hardial Singh Vs. Surjit Singh pending between the parties. Application Ex.A3 dated 05.03.2008 was filed on behalf of the appellant for directing the respondent to produce certain documents and in reply Ex.A4 dated 18.03.2008, it was pointed out by the respondent that all the original documents were attached in the file of Civil Suit of impugned judgment which has already been decided. Thus from such documentary evidence, the statement of the appellant on oath is corroborated that he came to know about passing of such judgment only on filing of reply Ex.A4 dated 18.03.2008. It is proved from the certificate appended on the last back page of the certified copy of the impugned judgment that the same was applied on 27.03.2008 and supplied on 31.03.2008. So, if the period from passing the judgment till gaining knowledge by the appellant on 08.03.2008 is deducted then the present application for condonation of delay, which was filed on 10.04.2008, is well within period of limitation. In a case titled Nabha Gaushala Committee(Regd.) Nabha Vs. Narinder Singh and another, 2005(3) Civil Court Cases 723, it was held by the Hon'ble Punjab and Haryana High Court that rights of the parties are to be adjudicated upon merits of the controversy and a party should not be thrown out merely on technicalities. Even if a party has been negligent in defending the proceedings still the other party can be compensated through costs. So, keeping in view such legal position and further when the appellant has been able to prove that he acquired knowledge about the passing of decree only on 18.03.2008, there are sufficient grounds to condone the delay in question for entertaining the present appeal filed by the appellant. Hence, this issue is decided in favour of the appellant.” Civil Revision No.1905 of 2011(O&M) 6 11. Meaning thereby, the first Appellate Court has recorded the valid grounds in the impugned order in this relevant behalf. Such order, containing the valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India, unless the same is perverse and without jurisdiction. As, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, therefore, the impugned order dated 17.02.2011 is hereby maintained in the obtaining circumstances of the case. 12. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition is hereby dismissed as such. July 13, 2011 (MEHINDER SINGH SULLAR) seema JUDGE