IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.474 of 2002. Date of decision: 18.11.2008. Sohan Lal …Petitioner Versus Parkash Chand & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Mr.Bhupender Gupta, Senior Advocate Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents: Mr.R.K.Gautam, Senior Advocate, with Mr.N.K. Bhardwaj, Advocate. Dev Darshan Sud,J. This is the defendants’ revision petition against the order passed by the learned Additional District Judge, Una, in a petition under Section 5 of the Limitation Act, (hereinafter referred to as the ‘Act’), preferred by the petitioner herein, praying that condonation of delay in preferring the appeal against the judgment and order of the trial Court which was against the petitioner herein. The learned Senior Sub Judge, Una, vide his judgment dated 30.8.2000, decreed the suit of the plaintiff declaring them to be owners in possession of the suit land and the entries 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 in the name of the petitioner herein to be illegal and not binding upon their rights. Consequent decree of injunction is also granted against the petitioner herein. The petitioner preferred an appeal on 29.3.2001 before the learned District Judge and an application under Section 5 of the Act stating that after 5.8.2000, the learned trial Court had not fixed any date for pronouncement of the order and the file remained in the Chamber of the Presiding Officer. They and their counsel made inquiries from the Ahalmad of the Court who responded that the file is lying in the chamber of the Judge. It was only on 17.3.2001 that the defendant came to know that the case had been decided on 30.8.2000 in the absence of the counsel representing the petitioner. This application was resisted by the respondent. One issue was settled i.e. as to whether there were sufficient grounds to condone delay in filing the appeal. On consideration of the evidence produced before the learned appellate Court, the application was dismissed holding that the petitioner had not been able to establish the case as pleaded. It is undisputed that the counsel representing the petitioner had filed his affidavit Ex.AW-1/A stating therein that no date for pronouncement of the order was intimated and that the file remained pending in the Chamber of the learned trial Judge. This affidavit has not been accepted as 3 substantive evidence by the learned appellate Court holding that the Advocate should have been produced as a witness so that he could be subjected to cross- examination. The Court also noticed that the facts mentioned in the affidavit are serious allegations against trial Court whose record cannot be controverted. I have heard learned counsel for the parties. Aside from the fact that the learned court below has adopted a hyper-technical approach, this case also represents a sad state of affairs where the record of the trial Court has to be contradicted by counsel who had willingly filed his affidavit. It is no doubt true that limitation vests rights in favour of a party but at the same time, the approach of the Court should be justice oriented and liberal as has been held in a number of decisions of the Supreme Court. I do not find that the approach of the learned appellate Court is in accordance with law. In any event, since one of the allegations, which has been made, is that the record of the learned trial Court does not reflect the proper position, the settled law is that in such an eventuality the party should approach the Court where recording of the order is challenged. In this view of the matter, this revision petition is allowed. The order passed by the learned Additional District Judge, Una, is quashed and set aside. Liberty is granted to the petitioner to move 4 learned trial Court, for review on the allegations as contained in the affidavit of the counsel Ex.AW-1/A. On such a petition being filed, the learned trial Court, totally uninfluenced by the decision of the appellate Court, shall consider the case of the petitioner/parties. For this purpose ample opportunity shall be granted to the parties to establish their respective claims. Needless to say that the opportunity shall be adequate and meaningful. Such petition, if filed, shall be entertained by the trial Court which shall not resort to the bar of limitation etc. As I find from the record that the petitioner has been diligently pursuing their remedy before the appellate Court as also this Court, it will be open to the parties to take out such other or further proceedings in accordance with law for assertion of their rights. November 18, 2008. (Dev Darshan Sud) (aks) Judge.