Chandra Pal And Another vs State Of U.P. And Others
2012 Latest Caselaw 2080 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - C No. - 25522 of 2012
 

 
Petitioner :- Chandra Pal And Another
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Santosh Kumar Pandey
 
Respondent Counsel :- C.S.C.,Mahesh Narain Singh
 

 
Hon'ble Ran Vijai Singh,J.

Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 28.3.2012 passed by respondent no. 2 and order dated 6.6.2008 passed by respondent no. 3. Vide order dated 6.6.2008, the application of the respondent-defendant filed under Order 9 Rule 13 of Code of Civil Procedure for setting aside the exparte decree was allowed after condoning the delay and by the subsequent order, the revision filed by the petitioner which was numbered as Revision No. 443 of 2007-2008 has been dismissed.

Sri Santosh Kumar Pandey, learned counsel for the petitioner, while assailing the impugned orders, has submitted that there was no section 5 application along with application for setting aside the exparte decree. He has also submitted that the application was barred by time, therefore it should have been accompanied with an application for condonation of delay with supporting an affidavit explaining the reason why the application was not filed well within time. He further contends that both the courts below have erred in ignoring this aspect of the matter as admittedly there was no application for condonation of delay and a separate affidavit was filed which was not the part of Section 5 application, therefore the courts below have erred taking that into consideration for condoning the delay and setting aside the exparte decree. In his submissions, the summons were duly served and the respondents avoided to participate in the proceeding.

Refuting the submission of learned counsel for the petitioner, Sri Gaurav Sisodiya, learned counsel appearing for the respondent no. 4 submits that the delay have been condoned and the exparte decree has been set aside and now substantial justice have been done to the parties and this Court sitting under Article 26 of the Constitution of India should not enter in these controversy.

I have heard learned counsel for the parties and considered their submissions.

From the perusal of the record, it transpires that although there was no application for condonation of delay but the grounds have been made praying for condonation of delay and an affidavit was also filed explaining the reason as to why the application was not filed well within time, there may be some technical defects in the format and filing of the application for condonation of delay but the Apex court has held that once the delay has been condoned meaning thereby the court has exercised the discretion in positive manner, the higher Court should not interfere with such order where the delay has been condoned.

The law relating to the delay condonation has been dealt with by the Apex Court in numerous cases and ratio of those cases favours the disposal of the cases on merit instead of rejecting the same on the ground of delay. The Apex Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. ( JT 1987 (1) SC 537 = 1987 (2) SCR 387) has given following guidelines while dealing with the delay condonation application :-

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 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 case of State of Bihar and others Vs. Kameshwar Singh and others reported in JT 2000 (5) 389 after considering various cases of the Apex Court on condonation of delay application has held :

Para 12................ " The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient case for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice -oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause".

Para 13................. " It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court".

In view of the decision of the Apex Court it is abundantly clear that while considering the delay condonation application the court has to see the merit of the case also as the law of limitation is not meant to take away the right of Appeal. The courts are meant for imparting justice and not to scuttle the justice on technicalities. The length of delay is also not very much material if there is a substance on merit. Further once the discretion has been exercised in positive manner then it should not be interfered with unless it is perverse and based on no material.

Here in this case, the delay has been condoned by the court below i.e. Sub-Divisional Officer Faridpur and the revision filed by the petitioner has been dismissed, now those orders are impugned in the writ petition. Sitting under Article 226 of the Constitution of India, I am not inclined to interfere in such a matter where the delay has been condoned.

However, considering the facts and circumstances of this case, I find that the cost imposed by the courts below of Rs. 300/- is very less and the same is being enhanced by Rs.1,000/- which is directed to be paid to the petitioners before the court of Sub-Divisional Officer, where the case is pending. In case the respondents, herein, deposit of Rs. 1,000/- along with certified copy of the order of this Court before the Sub-Divisional Officer, the Sub-Divisional Officer shall proceed thereafter in accordance with law.

The writ petition is disposed of.

Order Date :- 23.5.2012

Pratima