Civil Revision No.3512 of 2011(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No.3512 of 2011(O&M) Date of decision: 20.5.2011 Liyakat Ali ......petitioner Versus Municipal Corporation, Faridabad and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sanjeev Walia, Advocate for the petitioner. Mr.Deepak Jindal, DAG, Haryana. Ms.Balwinder Kaur, Advocate, for respondent. **** SABINA, J. Plaintiff-petitioner had filed a suit for permanent injunction claiming himself to be owner in possession of the plot in dispute. Defendant No.1, in its written statement, denied the contentions in the plaint. It was averred that the Municipal Corporation was owner of khasra No.148 and the plot in dispute was a part of the said khasra number. The plaintiff had encroached upon the part of khasra number to the extent of 44'x42'. On the pleading of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff deserves for the relief of injunction Civil Revision No.3512 of 2011(O&M) 2 as prayed for ? OPP 2. Whether the plaintiff has no locus standi to file the present suit ? OPD 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the petitioner has no cause of action to file the present suit ? OPD 5. Whether the plaintiff is estopped from filing the present suit due to its own act and conduct ? OPD 6. Relief The trial Court, vide judgment and decree dated 3.8.2007, dismissed the suit of the plaintiff as the plaintiff had failed to lead any evidence in support of his case. Thereafter, the plaintiff filed an appeal against the said judgment and decree, alongwith an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal. The said application was dismissed and thereafter, vide judgment and decree dated 17.11.2008, the District Judge dismissed the appeal filed by the plaintiff as the delay in filing the appeal had not been condoned. Since, the application for condonation of delay in filing the appeal had been dismissed, the learned District Judge should have dismissed the appeal being time barred. There was no necessity to pass judgment and decree dated 17.11.2008. In these circumstances, the present appeal is liable to be treated as a civil revision as against the order, whereby the delay in filing the appeal is not condoned, a civil revision lies and not an appeal. In the present case, the office has apparently treated the Civil Revision No.3512 of 2011(O&M) 3 present case as regular second appeal as the District Judge had erroneously framed a decree. Accordingly, let this appeal be treated as a Civil Revision and the office is directed to register the same as a Civil Revision. Learned counsel for the petitioner has submitted that the first Appellate Court had erred in dismissing the application for condonation of delay in filing the appeal as the delay in filing the appeal was not intentional but due to the fact that the petitioner had been informed that his suit had been dismissed in default by his counsel and therefore, he had filed an application for restoration of the suit. Learned counsel for the respondents, on the other hand, has submitted that the appeal had been filed after a long delay and hence, the application seeking condonation of delay had been rightly dismissed. After hearing learned counsel for the parties, I am of the view that the instant petition deserves to be allowed. The suit filed by the plaintiff was dismissed vide judgment and decree dated 3.8.2007. The plaintiff was under the impression that the suit had been dismissed in default and consequently, moved an application seeking restoration of the case. Since the suit had been decided on merits, the application for restoration was dismissed. Thereafter, the appeal was filed by the plaintiff. The Apex Court in Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, AIR 1987 Supreme Court, 1353 had held as under:- 1. Ordinarily a litigant does not stand to benefit by lodging Civil Revision No.3512 of 2011(O&M) 4 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 malafides. 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.” In the present case, the delay in filing the appeal is Civil Revision No.3512 of 2011(O&M) 5 neither intentional nor deliberate. In these circumstances, the delay in filing the appeal was liable to be condoned as the plaintiff, under a bonafide belief, had resorted to a wrong remedy. Accordingly, this petition is allowed. The order dated 17.11.2008, whereby, application seeking condonation of delay in filing the appeal was dismissed, is set aside. Consequently, the application seeking condonation of delay in filing the appeal is allowed and the delay in filing the appeal is condoned. Learned first Appellate Court is directed to decide the appeal on merits in accordance with law. Parties are directed to appear before the first Appellate Court on 6.6.2011. (SABINA) JUDGE May 20, 2011 anita