IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.430 of 2002. Judgment Reserved on: 02.09.2008. Date of decision: 08.09.2008. H.P.F.C. ….Petitioner Versus M/s.Laxmi Fastners & Anr. ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Mr.Bimal Gupta, Advocate. For the Respondents: None. Dev Darshan Sud,J. This revision has been preferred by the petitioner herein who was the appellant before the trial Court. The suit of the appellant having been dismissed as barred by limitation, an appeal was preferred before the first appellate Court which was also barred by time. In the application preferred before the learned District Judge, it was pleaded that the arguments in the suit were heard on 24.8.2000 and the case was fixed for 31.8.2000 for pronouncement of judgment, but on that day the case was never listed nor the orders were announced in the presence of the counsel for the parties. This averment has been made in paragraph-2 of the application. The narration in 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 the application continues that the applicant through its counsel believed the version of the Reader of the Court that the case would not be listed and therefore, the delay in filing the appeal was bonafide. Two witnesses, namely, PW-1 Shri B.S. Thakur, Assistant General Manager of the appellant and PW-2 Shri J.L, Kashyap, Advocate, appeared to justify the delay in filing the appeal. While considering the evidence, the learned Court holds that PW-1 Shri B.S. Thakur, admitted in cross- examination that he never attended the Court during the pendency of the suit or on 31.8.2000 when the case was fixed for judgment. He admitted that on 24.8.2000 he was informed that the case was fixed for pronouncement of judgment on 31.8.2000. The learned Court holds that this witness is not conversant with the fact of the case, but seems to have appeared only as a formality. The learned Court holds that on 24.8.2000 Shri J.L. Kashyap, Advocate, appeared for the petitioner and on 31.8.2000 Ms.Meena Thakur, Advocate vice Shri J.L. Kashyap, Advocate, had appeared for the appellant when the judgment had been announced. In these circumstances, the testimony of PW-2 to the effect that the case was not listed for judgment, was not accepted. The learned appellate Court finds as a fact that no case has been made out 3 from the evidence that the judgment was not announced in the presence of Ms.Meena Thakur, Advocate. This apart, the best evidence in the case would have been to produce the original cause list / Register of cases in evidence as to whether the suit was actually listed on 31.8.2000 or not. The Court record shows that the case was taken up that day and judgment was pronounced. It is undisputed that the copy of the judgment was obtained by the appellant herein which shows that the judgment was pronounced in the presence of the counsel as recorded in the order sheet. The averment made in the application is that on the day when the order was pronounced, “some proxy advocate” had appeared and that there was no authority on behalf of the petitioner herein authorizing such appearance. Surely if this was the case the best way to rebut this fact was either to have examined that advocate and the basis of the authority on which she had put in appearance. What was the necessity of an advocate appearing on behalf of the petitioner herein when the case was never fixed for further proceedings? This question has remained unanswered. The application for condonation is nothing but an attempt to shift the blame on the Court and to some proxy counsel without in any manner establishing two facts (a) that the case was never taken up for pronouncement of the judgment on the day fixed; (b) that the counsel Ms.Meena Thakur was never 4 authorized to appear when the judgment was pronounced. These are facts which could be proved by evidence. No attempt or efforts having been made to establish these facts, the petitioner now seeks the annulment of the order. It is true that a liberal approach has to be adopted in interpreting the provisions of Section 5 of the Limitation Act,(See: Commissioner of Central Excise, Coimbatore and others vs. Jawahar Mills Ltd. And others, AIR 2001, SC 2500), but at the same time the it is settled that it is not the length of delay but the quality of explanation which comes forth which is to be tested. At the same time, the caution added by the Supreme Court in P.K. Ramachandran vs. State of Kerala and another, AIR 1998 SC 2276 that the law of limitation may harshly affect a particular party and should be applied without that rigour cannot be ignored. The quality of explanation, as held by the learned District Judge, is not bonafide, the blame being put squarely on the Court and no attempt being made by the party to establish the state of affairs which are said to have not existed. To add to what the learned appellate Court holds, I find that the explanation put forth cannot be accepted but is evasive. I do not find that the learned Court below has exercised jurisdiction vested in it in a perverse manner. Even on re-appreciating the entire evidence I cannot persuade myself that the Court has taken a view which 5 is not sustainable in law. This petition is accordingly dismissed. There shall be no order as to costs. September 8, 2008. (Dev Darshan Sud) (aks) Judge.