C.R No. 3139 of 2007 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 3139 of 2007 Date of decision : February 05, 2008 The Punjab State & others, ...... Petitioners through Mr.Piyush Kant Jain, Addl.A.G Punjab v. Jagtar Singh, ...... Respondent through Mr.S.K.Mahajan, Advocate CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA *** 1. Whether Reporters of Local Newspapers 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 ? *** RAJIVE BHALLA,J (Oral) Challenge in this revision petition is to an order, dated 9.4.2007, passed by the learned Additional District Judge, Amritsar, dismissing the petitioners' appeal as barred by limitation. Counsel for the petitioners submits that the appellate Court failed to condone the nominal delay of 12 days. The delay was occasioned by a divergence of opinion as to the filing of the appeal between the District Attorney and the Director, Prosecution and Litigation on the one hand and the Under Secretary to the Government of Punjab on the other. As the opinion of the Under Secretary to the Government of Punjab prevailed and the petitioners were directed to file an appeal, sufficient cause for delay in presentation of the appeal was made out by the petitioners. The sufficient C.R No. 3139 of 2007 ::2:: cause, averred in the application, was duly supported by an affidavit and fortified by the deposition of AW1-Manjit Singh, Divisional Soil Conservation Officer. The appellate Court, however, dismissed the application by holding that the original documents were not placed. It is prayed that in matters of condonation of delay, where sufficient cause is shown, Courts have always leaned towards an adjudication on merits and, therefore, the appellate Court erred in dismissing the application for condonation of delay. Counsel for the respondent, on the other hand, submits that a defaulting party is required to establish sufficient cause strictly, as in the absence of a cogent explanation, delay cannot be condoned. The appellate Court, after considering all relevant facts, including the pleadings and the statement of AW1-Manjit Singh, dismissed the application for condonation of delay on the ground that the explanation, furnished by the petitioners, did not disclose sufficient cause. I have heard counsel for the parties and perused the impugned order. The judgment was pronounced on 16.3.2006. An application for supply of a certified copy of the judgment and decree was filed on 20.3.2006. The certified copy was prepared on 5.4.2006 and was delivered on 8.4.2006. The appeal, filed on 15.5.2006, was barred by limitation by 12 days. The explanation, furnished by the State of Punjab, before the appellate Court, is that a certified copy of the judgment was delivered to the Office of the District Attorney, Amritsar on 8.4.2006. The District Attorney, Amritsar forwarded the certified copy to the Director, Prosecution C.R No. 3139 of 2007 ::3:: and Litigation, Punjab on 13.4.2006 with comments that the case was unfit for appeal. The Director, Prosecution and Litigation, Punjab, after considering the above note, forwarded the certified copy of the judgment and decree to the Under Secretary to Government Punjab, Agri-III Department, on 24.4.2006. The Under Secretary reconsidered the entire matter and vide letter, dated 28.4.2006 accorded his sanction for filing the appeal and the Director, Prosecution and Litigation, Punjab was requested to issue necessary instructions to the District Attorney, Amritsar to file the appeal. Accordingly, vide letter, dated 2.5.2006, the Director, Prosecution and Litigation, Punjab directed the District Attorney, Amritsar to file an appeal. The said letter was received in the office of District Attorney, Amritsar on 8.5.2006. The District Attorney, Amritsar, vide a TPM, dated 10.5.2006, directed the Chief Conservator of Soils, Punjab and Divisional Soil Conservation Officer, Amritsar to file the appeal, along with an application for condonation of delay, as also arrange for court fee stamps etc. for filing the appeal. On receipt of the TPM, the appeal was filed along with an application for condonation of delay. The above referred explanation has been quoted in extenso by the appellate Court in paragraph 3 of its order. The appellate Court, however, dismissed the application for condonation of delay, primarily on the ground that documents in support of the averments in the application were not forthcoming. The learned appellate Court, in my considered opinion, committed an error of jurisdiction by resorting to pedantic and hyper-technical approach. The explanation, in my considered opinion, was clear, cogent and sufficient to condone the delay of 12 days. The appellate Court ignored the basic principles that govern the exercise of power to C.R No. 3139 of 2007 ::4:: condone delay, namely, ....... where the explanation is bona fide and credible, delay should generally be condoned. The principles that govern the power to condone delay, have been set out by the Hon'ble Supreme Court in Naubat Ram Sharma vs Additional District Judge II, Moradabad and others, AIR 1987 SC 1352, which read as follows :- “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 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 C.R No. 3139 of 2007 ::5:: 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.” In Ram Nath Sao @ Ram Nath Sahu vs. Gobardhan Sao, 2002 (2) RCR (Civil) 337, after placing reliance on the aforementioned judgment, and other similar judgments, the Hon'ble Supreme Court considered the ambit of expression “sufficient cause” within the meaning of Section 5 of the Limitation Act and held as follows :- “11. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order is over jubilation of disposal drive. Acceptance of explanation furnished should be the C.R No. 3139 of 2007 ::6:: rule and refusal and exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.” A considered appraisal of the facts of the present case, more particularly, the explanation, furnished by the petitioners, and the lack of any mala fide intent, negligence or inaction on their part, in my considered opinion, is sufficient to condone the delay of 12 days in filing the appeal. The appellate Court was not justified in dismissing the application for condonation of delay and consequently the appeal. The mere fact that documents, referred to in paragraph 3 of the impugned order, were not produced, was irrelevant, as at no stage of the proceedings did the C.R No. 3139 of 2007 ::7:: respondent impugn their correctness. Consequently, the revision petition is allowed and the order, dated 9.4.2007 is set aside. The matter is remitted to the Additional District Judge, Amritsar to decide the appeal on merits. Parties are directed to appear before the aforementioned Court on 10.3.2008. ( RAJIVE BHALLA ) February 05, 2008. JUDGE `kk'