Second Appeal No. 717 of 2011

24th January, 2012

Petitioner Counsel: Mr. A.G. TALHAR
Respondent Counsel: Mr. S.J. GAYKE

Cases Cited:
Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors., AIR 1987 SC 1353 [Para 7]

JUDGMENT

JUDGMENT :- Heard learned Counsel for the parties. Learned Counsel for the appellant invited my attention to the contents of application which is filed for condonation of delay. He submits that the appellant/applicant was suffering from jaundice. To that effect the appellant/ applicant examined herself before the Lower Appellate Court. The doctor who issued such certificate was also examined. The applicant was hospitalized and admitted for considerable period. She was advised for bed rest for about one year. The age of the applicant is 72 years. Therefore, relying upon contents of the application for condonation of delay and the evidence brought on record before the Lower Appellate Court, the Counsel for the appellant/applicant submits that the delay in filing appeal ought to have been condoned by the Lower Appellate Court by adopting liberal approach.

2.On the other hand, learned Counsel appearing for the respondent vehemently opposed the application for condonation of delay. He submits that there is inordinate delay in filing the Regular Civil appeal. Said delay was not properly explained. The applicant was in hospital only for three months and therefore there was no reason to delay the filing of the appeal by 439 days. The Counsel invited my attention to the findings recorded by the Lower appellate Court and submitted that this appeal is devoid of merits and same may be dismissed. In the alternative, he submits that if this Court is inclined to allow the application for condonation of delay, in that case heavy costs may be imposed upon the appellant/applicant. He submits that the costs of Rs.5,000/- may be imposed on the appellant/applicant.

3.I have given due consideration to the rival contentions, perused the grounds taken in the memo of appeal, also perused the impugned judgment & order and other documents placed on record. I am of the considered opinion that the Second Appeal raises following substantial questions of law for consideration :-

(i) Whether the Lower Appellate Court was correct in rejecting the application for condonation of delay though sufficient cause was disclosed in the application for condonation of delay?

(ii) Whether in an application for condonation of delay, the Court can take hyper-technical view, thereby defeating rights of the parties to prosecute the substantial appeal?

4.Admit, on the aforesaid substantial questions of law. On admission, learned Counsel for the respondent waives service of notice. With consent of parties, the Second Appeal is taken up for final hearing at admission stage.

5.Upon perusal of contents of the application filed by the applicants it is undisputed position that the applicant is 72 years of age. It is also not in dispute that the applicant was suffering from jaundice. The contention of the non-applicant is that she was in hospital only for three months and therefore there is no sufficient cause disclosed in the application for condonation of delay, that why the appeal is not filed for considerable period.

6.Upon perusal of evidence of the applicant and the doctor, which is produced on record along with appeal, there is no manner of doubt that the applicant was suffering from jaundice and also she was required to take treatment in the hospital for months together. It is also stated by the applicant on oath that she was advised to take bed rest for one year.

7.It appears that the Lower Appellate Court was of the opinion that the delay in filing the application is not explained properly, since the applicant was in hospital for about three months. Upon perusal of evidence of the applicant, it appears that the applicant was advised to take bed rest. The applicant is 72 years of age and the doctor has also issued certificate that she was suffering from jaundice. In that view of the matter, in my opinion, the length of delay itself is not only criteria or relevant factor while considering the prayer for condonation of delay. What matters is sufficient cause disclosed in the application for condonation of delay. It is not case of the respondents that by delaying the filing of appeal, the appellant has gained any undue advantage. The Supreme Court in the case of Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors. Reported in AIR 1987 SC 1353, in paragraph 3, observed :-

"3The legislature has conferred the power to condone delay by enacting S. 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 mattes instituted in this Court. But the message doe sot appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :-

(1)Ordinarily a litigant does not stand to benefit by lodging an appeal late;

(2)Refusing to condone delay can result in 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 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 hours delay, every seconds 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 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."

8.Upon perusal of first principle which is laid down in the aforesaid pronouncement by the Supreme Court, by delaying filing of appeal, the appellant has not gained anything or benefited by delaying such proceeding. In the facts of this case, it is admitted position that the suit filed by the appellant is dismissed in its entirety. Therefore, the appellant has not got any benefit by delaying the filing of appeal before the Lower Appellate Court. Another aspect required to be taken into consideration is that, whether the right of the appeal of the party can be taken away merely because there is no explanation on day-to-day basis for condonation of delay. In my considered opinion, viewed from any angle, in the facts and circumstances of the case, sufficient cause was disclosed by the appellant/applicant in the application for condonation of delay. Therefore, the Lower Appellate Court should have adopted liberal approach in the matter and thereby should have condoned the delay.

9.Therefore, for the reasons aforesaid, the application for condonation of delay stands allowed. The delay in filing the appeal before Lower Appellate Court stands condoned. The Second Appeal is allowed to above extent and stands disposed of. However, this appeal is allowed subject to payment of costs of Rs.5000/- ( Rupees Five Thousand) by appellant/applicant to be deposited in the Lower Appellate Court within five weeks from today. Upon deposit of such amount, the respondents will be entitled to withdraw the same without any formal application. The Lower Appellate Court to proceed further on deposit of such costs, within five weeks from today. The Lower Appellate Court to proceed to decide the appeal on its own merits. It is once again clarified that if the costs of Rs.5000/-are not deposited by the appellant/applicant within stipulated time, the order passed by this Court will not take effect.

Second Appeal allowed.