Ravindra Jain vs Natraj Albums Industries (Pvt.) ...
1996 Latest Caselaw 873 Del

JUDGMENT

R.C. Lahoti, J.

(1) Whether an application under Section 5 of the Limitation Act seeking condensation of delay in filing an appeal must accompany the memo of appeal? If the application is not so filed does it cease to be maintainable merely because it was filed a few days after the filing of the appeal? These are the questions of law of day to day recurrence, which arise for decision in this appeal.

(2) The order of injunction which is under appeal was passed on 24.5.96. On 25.5.96 an application for certified copy of the order was made. Copy was ready on 28.5.96. The last day of filing the appeal was 27.6.1996. The appeal was filed on 2nd July, 1996. It was not accompanied by an application seeking condensation of delay in filing the appeal. The registry raised a few objections including one of the appeal being barred by time and brought it to the notice of the appellant's counsel. The appeal was returned to the appellant's counsel for removing the defects and refiling the same within one week. The appeal, accompanied by an application under Section 5 of the Limitation Act, supported by an affidavit, was filed on 6.7.96. An additional affidavit in support of the application has been filed on 26.7.96. According to the appellant, the appeal is belated by one day only; it could have been filed on 1.7.96, the day on which the High Court opened while it has been actually filed on 2.7.96. It is prayed that the delay deserves to be condoned.

(3) The prayer for condensation of delay has been opposed tooth and nail by the plaintiff-respondent, not only on the ground that no sufficient cause for condoning the delay is made out, but also on the ground that the application was not maintainable and was liable to be dismissed in limine.

(4) The first and foremost attack made by the learned counsel for the plaintiff- respondent is based on Rule 3A of Order 41 of the Civil Procedure Code introduced by the 1976 Amendment. It provides as under :- 3A.Application for condensation of delay (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. (3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule Ii, decide to hear the appeal.

(5) Implicit reliance has been placed by the learned counsel for the respondent on a Single Bench decision of this Court in R.C. Chaudhary v. Prestige Chit Co., 1996 Rlr 332 with which we will deal shortly hereinafter. R.C. Chaudhary's case refers to Nirmal Chaudhary v. Bisheshwar Lal , also a single bench decision.

(6) A loose practice of admitting the appeals, leaving open the question of limitation on being raised and to be determined at the time of hearing and on the appearance of the opposite party was being followed by the Courts. The object of inserting Rule 3-A in Order 41 of the Civil Procedure Code was to put an end to such a practice which was disapproved by the Privy Council (see Statement of Objects and Reasons and Narayan Anappa Shethi v. Jayantilal Shah, .

(7) There is a near unanimity of opinion amongst different High Courts of the country as deducible from the available decided cases holding the provisions of Rule 3-A directory and not mandatory. Merely because a time barred appeal is not accompanied by an application for condensation of delay that by itself is no ground to dismiss the appeal. 7.1. For Bombay view see M.Das Gupta v. Prakash K. Shah, . 7.2. For Patna view see Ramkali v. Indrodeo, and State of Bihar v. Rai Chandi Nath Sahay, . 7.3. For Orissa view see Dijabar v. Sulabha, . 7.4. For Karnataka view see State of Karnataka v. Nagappa, . 7.5. For Calcutta view see Smt. Sipra Dey v. Ajit Kumar Dey, . 7.6. For Gujrat view see Naren Anappa Shethi v. Jayantilal Shah, . 7.7. For Assam view see State of Assam v. Gobinda Chandra Paul Air 1991 Guahati 104. 7.8. For Kerala view see Maya Devi vs M.K.Krishna Bluttathiri, . 7.9. For Punjab view see Puran Kaur v. Dhian Chand 69(1989/2) Pun.L.R. 24.

(8) The view taken in the above referred to cases of different High Courts is that the provisions of Order 41 Rule 3A are procedural at least to the extent to which they require an application for condensation of delay being filed simultaneously with the memo of appeal. The provision cannot be called mandatory though the word "shall" is used therein. The view taken by Gujrat and Delhi High Courts is that Section 5 of the Limitation Act is a provision independent of Rule 3-A of Order 41 of the CPC; its operation and exercise of the power vested in the court to condone the delay is not dependent on procedural requirement contained in Rule 3A.

(9) It is interesting to note that the High Court of Karela and Karnataka respectively in the year 1980 and 1984 held the provisions of Order 41 Rule 3A mandatory. Karela and Karnataka view were dissented by Gujrat High Court in 1987. Karnataka view of 1984 stood overruled in 1986 by Division Bench deciding State of Karnataka v. Nagappa. The validity of Karela view of 1980 has also been shaken by the later Division Bench decision of the same High Court in Maya Devi's case (supra).

(10) In Puran Kaur v. Dhian Chand 69(1989/2) Pun.L.R. 24, the first appeal filed before the Addl District Judge was barred by time and on the memo of appeal itself it was written at the foot that the appeal was barred by time. Still notice of the appeal was issued to the respondents. When they took an objection, the appeal was dismissed as not maintainable. In revision the High Court held: "IN these circumstances, sub rule (2) of rule 3A of Order Xli of the Code, was attracted and the Court should have finally decided the question of limitation before it could proceed to deal with the appeal under rule Ii or rule 13 of the said Order. Instead of dealing with the question of limitation, the Court dismissed the appeal as not maintainable which was not warranted. At that stage, the court could at the most direct the petitioner to file the requisite application under Section 5 of the Act because the Court had issued notice of the appeal as contemplated under sub-rule (2) of rule 3A of Order Xli of the Code."

The revision was allowed and the appeal sent back to the District Judge directing the petitioner to move necessary application for condensation of delay before the District Court. The District Judge was directed to dispose of the application and the appeal.

(11) We may now refer to single Bench decision of our own High Court in Ms Nirmala Chaudhry vs Bisheshar Lal . We propose to deal with this judgment in little more details because it is a decision of our own High Court and the observations made in paras 18 and 23 give an impression of the provision of Order 41 Rule 3A having been held mandatory. 11.1 It was the case of an appeal under Section 38(2) of Delhi Rent Control Act, 1958 which itself contains a provision for condensation of delay in filing an appeal if sufficient cause for delay was made out - a provision pan materia with Section 5 of the Limitation. Act. Rule 23 of the Rules framed under the Act attracts applicability of Order 41 Civil Procedure Code to the appeals filed under Section 38 of the Act. Thus, Rule 3A of Order 41 would also be relevant. An appeal was filed before the Rent Control Tribunal and admitted for hearing. On the appearance of the respondent the appeal was objected to as being barred by time. After several adjournments and lapse of nearly one-and-a-half year from the date of the filing of the appeal, an application under Section 5 of the Limitation Act was filed seeking condensation of delay in filing the appeal. The application was objected to as not maintainable as not having been filed along with the memo of appeal. The Tribunal dismissed the application. Second appeal was preferred to the High Court. 11.2 Vide para 18 having quoted the Rule 3A, the learned Judge observed : "This is a new provision and was not there in the unamended Code. The purport of R.3A is that as and when the appeal is presented after the expiry of limitation specified for an appeal, it has to be accompanied by an application supported by affidavit setting forth the facts constituting sufficient cause for not preferring the appeal within the time fixed. But the very wordings of R.3A of Order 41 show that it is mandatory and a duty is cast on the appellant to file an application as contemplated by it for condensation of delay at the time of presentation of the appeal. Of course the legislature contemplates that the appellant must calculate the time before filing the appeal and to file the application along with the appeal showing sufficient cause if it was barred by time." 11.3 Vide para 21 the Court posed two questions to itself : what is the effect if an application is not filed under Rule 3 A at the time of presentation of the appeal? Is the court powerless to condone the delay? 11.4 Vide paras 22 and 23 the Court has observed : "22. The provisions of R.3A are both procedural as well as substantive in nature. It provides procedure as to how and when the application for condensation of delay will be filed and also confers power on the court to condone the delay if sufficient cause is made out." "23. As noticed earlier, the power to condone the delay under R.3A of Order 41 can be exercised only if the application for condensation of delay is filed along with the appeal. This is in a way a right conferred on the appellant." 11.5 Vide para 25 the Court has held : "The power which is conferred by R.3A is in addition to the power conferred by S.5 read with S.29(2) of the Limitation Act, and the proviso to sub-section (2) of Section 38 of the Act. Can it be said that the power under the latter provision is also exhausted once a party has not availed of the right conferred by R.3A of O.41 Civil Procedure Code ? I am afraid, the answer is "no". Whereas R.3A of 0.41 of the Code has been incorporated creating a right in favour of the appellant to apply for condensation of delay in the manner provided in the said rule, the proviso to sub-s.(2) of S.38 of the Act and the provisions of S.5 of the Limitation Act read with Section 29(2) thereof, on the other hand, confer power on the court and a consequent right on the appellant. But the power is essentially of the court and/or the Tribunal, as the case may be. That power has not been taken away in any manner." 11.6 Vide para 31 .the Court has held that it was not even necessary to move an application for condensation of delay in so far as the provisions of Section 5 of the Limitation Act are concerned. To quote :- "As the provisions of Section 5 of the Limitation Act and the proviso to Section 38(2) are framed it does not even necessarily imply in law that the power of the court to condone the delay is circumscribed by an application being filed. The power to condone delay can be exercised if the appellant satisfies the court that he had sufficient cause for not filing the appeal within the period prescribed. The Court can be satisfied even from the affidavits or the documents on the record. It is not necessary in law that an application must be filed. Of course as a matter of practice the appellant does file such an application. But the power of the court is not necessarily dependent on a formal application being made by the appellant. If it is made, well and good, but if it is not made and only an oral prayer is made for condensation of delay, the court is not powerless if there is material on the record to show facts constituting sufficient cause for condensation of delay." 11.7 The crux of analysis of law has been recorded vide paras 34 and 35 as under : "34. The power of condoning delay conferred by the Limitation Act or by the provisions of the Act is not subject to any rules or practice. The newly added provision of R.3A of 0.41 in the Civil P.C. gives an additional right to a litigant to claim condensation at the time of presenting the appeal. The provision of R.3A of 0.41 of the Code cannot be read in such a way as to repeal the power conferred on a court by the substantive provisions for condensation of delay referred to in the aforesaid two provisions. "35. It must,therefore, be held that in spite of R.3A of 0.41 of the Code, the Court still has power to condone the delay under S. 5 of the Limitation Act and/or proviso to sub-section(2) of Section 38 of the Act as the case may be. The power conferred by R3A of 0.41 of the Code is in addition to the power conferred by the aforesaid provisions." 11.8 It is not difficult to visualise a situation where the appellant may not even be aware of his appeal being barred by time. The question of limitation may escape the attention of the Registry and also of the Judge admitting the appeal and issuing notice to the respondent. It will be too harsh to deny in such a case the appellant any opportunity of filing an application under Section 5 of the Limitation Act for condensation of delay on objection on the ground of limitation being raised by the respondent on his appearance. On the language of Rule 3A we see no justification for drawing a distinction between two types of cases: (i) when the plaintiff is aware of the appeal being barred by time and (ii) when he is not so aware. 11.9 We, therefore, agree with the view taken in Nirmala Chaudhry's case that Rule 3A merely confers an additional right on the appellant of moving an application for condensation of delay along with the memo of appeal, otherwise it is merely a procedural provision. In any case, a mere non-compliance with Rule 3A would not take away power of the court exercisable under Section 5 of the Limitation Act. Once we hold so. Rule 3A ceases to be mandatory.

(12) In Sangram Singh v. Election Tribunal, Kotah,  their Lordships have held :-    "NOW a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."  

(13) In Jai Ram Manoharlal v. National Building Material Supply, Gurgaon, , it is said:-    "RULES of procedure are intended to be a handmaid to the administration of justice A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure."  

(14) In Kalipada Das v. Bimal Krishna, , it was held "a procedural step which facilitates hearing of the appeal, cannot impede access to justice."   

(15) It is well settled that the use of the word, "shall" in legislative enactment is not necessarily suggestive of the mandatory character of the provision in all cases. In spite of the use of the word "shall" the provision may only be directory [See : Collector of Monhyr vs Keshav Prasad Goenka, , and State of M.P. vs Azad Bharat Finance Co, ]. One of the tests to determine whether the provision is mandatory or directory is to find - whether the provision provides any penalty for non compliance. Rule 3A does not oblige the Court to reject an application under Section 5 of the Limitation Act merely for the fault of its not having been filed with the memo of appeal.

(16) All rules of procedure are meant to serve, and not rule, the administration of justice. Whether such a rule is mandatory or directory - answer to this question would depend on finding out what is the purpose the rule seeks to achieve and what are the consequences which would flow from non-compliance thereof. Use of 'shall' is not decisive of the character of the provision. We are, therefore, of the opinion that the requirement of an application seeking condensation of delay in filing an appeal being filed along with the memo of appeal is a mere procedural requirement not mandatory in nature. Such an application if not filed with the memo of appeal can also be filed later on. A belated application may loose its weight but would not for this reason alone be cease to be entertainable. This view is in accordance with weight of the judicial authority and appeals to our sense of justice. We do not subscribe to any view taken to the contrary.

(17) In Chhitu v. Mathuralal , the High Court of Madhya Pradesh has observed: "The governing expression in 0.41, Rule 3A(2) "shall be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be" makes it imperative for the appellate court first to decide the question of limitation and puts an embargo on its (Court's) power to proceed further in the appeal."

(18) As we have already noticed the object behind enacting Rule 3A was to oblige the Court.to determine the question of limitation before proceeding to pass any other judicial order in appeal. Only to that extent the provision is substantive and mandatory. The object oriented approach in interpretation of statutes also lends support to the view we have taken.

(19) To sum up : (I)Rule 3A of Order 41 Civil Procedure Code is partly mandatory and partly directory. It is mandatory to the extent it obliges the Court to dispose of question of limitation before it proceeds to deal with appeal. Rest of it is directory, Filing of an application for condensation of delay in preferring the appeal as accompanying the memo of appeal is a procedural requirement and is not mandatory. (ii) An application under Section 5 of the Limitation Act cannot be refused to be entertained merely because it- was not filed simultaneously with or as accompanying the memo of appeal.

(20) We may now refer to another decision of this Court in R.C.Chaudhary's case (supra) forcefully relied on by the learned counsel for the respondent. 20.1. A perusal of the facts of R.C.Chaudhary's case (supra) as set out in paras 4, 5 and 7 of the report goes to show that it was a case where there was no application seeking condensation of delay filed in the appeal. The question whether the provisions of Rule 3-A above said are mandatory or directory had arisen only incidentally. Moreover various authorities and the trend of the judicial opinion noticed by us hereinabove was not brought to the notice of the Court deciding R.C.Chaudhary's case (supra). Reliance on R.C.Chaudhary's case (supra) therefore is of no help to the plaintiff-respondent.

(21) The facts of Division Bench decision of Kerala High Court in Maya Devi v. M.K. Krishna Bhattathiri, are very close to the case at hand. An appeal was filed which the registry found to be barred by time. It raised an objection and returned the memorandum of appeal to the appellant for curing the defects. It was refiled. An application seeking condensation of delay in filing the appeal was also filed. The application was objected to as being not maintainable in view of the same having not been filed alongwith the memo of appeal as originally presented. The Division Bench held :- "Rule 3A of Order 41 is intended only to emphasize that if an appeal had been filed out of time before the appeal is taken up for consideration the question of delay must be considered before any other order is passed in the appeal. It is to achieve this object that the Rule provides that the appeal should be accompanied by a petition to excuse the delay. If the petition to excuse the delay is filed as a consequence of the direction of the Court to cure the defect, when the defect is cured there is a valid presentation of the appeal. Once the Court returns the same for representation after supplying the deficiency or curing the defect it must mean that permission is granted by the Court for that purpose and once that is complied with it should be deemed to have been presented on the day it was originally filed. This is on the same principle as is provided for in Section 149 Civil Procedure Code and Section 5 of the Court Fees Act.

(22) The Delhi High Court Rules also permit memo of appeal being returned to the appellant by the Registry alongwith a direction to refile the same after curing the defects, if the memo of appeal as originally presented is found to be defective. That was done. In as much as the defect of non-filing of the application under Section 5 of the Limitation Act was cured and the memo of appeal was represented alongwith application for condoning the delay in compliance with the registry's notings which it is competent to make under the Rules, the memo of appeal would be fictionally deemed to have been filed originally accompanied by the application for condensation of delay.

(23) The application filed by the appellant herein also has to be determined on its own merits. It cannot be dismissed simply as non-maintainable for the fault of its not having been filed with the initial tiling of memo of appeal.

(24) We may now deal with other objections raised on behalf of the plaintiff respondent.

(25) It was submitted that the appeal has been filed by Ravinder Jain while, the application under Section 5 Limitation Act is signed and supported by affidavit of Muni Lal Jain. The appellant Ravinder Jain has not chosen to sign the application or file the affidavit in support thereof and therefore the application and the affidavit are irrelevant and need not be looked into by the Court.

(26) The objection though attractive on its face deserves to be discarded on a little probe into the relevant facts and circumstances of the case.

(27) Suit No. 1579/95 was filed by (i) M/S Natraj Album Industries, (ii) M'/s. Natraj Sales, and (iii) its proprietor Smt Santosh Madan, as the plaintiffs impleading the following as defendant: Shri Ravinder Jain Trading as M/S B.R. Plastic Industries 5438, Basti Harphool Singh Sadar Thana Road DELHI. 27.1 In the written statement it is pleaded vide paras 1 to 4 that M/S. B.R. Plastic Industries was carrying on its business since 1975. There were changes in the constitution of the firm. Presently the business was being carried on under the partnership deed dated 1.4.1983 which was filed with the written statement. The deed of partnership shows that Munni Lal Jain, his son Ravinder Kumar Jain and two female members of the family namely Jyoti Jain and Sunita Jain were all partners in the firm. Munni Lal Jain and Ravinder Kumar Jain have 30% share each. The two ladies have 20% share each. 27.2 The written statement and reply to the application have been filed under the signature of Munni Lal Jain, the partner of M/S B.R. Plastic Industries. Munni Lal Jain has also sworn in an affidavit filed in support of reply to the application for grant of injunction. 27.3 A perusal of the pleadings goes to show that the plaintiff was not aware of the real constitution of the trading firm M/s.B.R. Plastic Industries whether it was a partnership firm or a sole proprietary unit. It has, therefore, been sued in the manner as stated in para 27 above. 27.4 The defendant has in the written statement disclosed its identity that it was a partnership firm - M/s.B.R.PIastic Industries, of which Ravinder Jain and Muni Lal Jain were both partners. Once it is found that it is a partnership firm which is being sued, it can act through its partners. The provisions of Rule I of Order 30 of the Civil Procedure Code would come into play. A suit by or in the name of the firm is competent. If the persons sued are partners and sued in the name of the firm, any pleading or other document required to be signed, verified or certified may be so done by any of the partners. 27.5 In Firm Mahadeo prasad Vaid Nath Prasad v. Finn Kanjilal Vidyamm it was held that where a decree is passed against a firm, any member of the firm can appeal against the decree as against the firm. The principle is fully applicable to the case at hand. 27.6 The appeal filed under the signature of Muni Lal Jain is, therefore, competent. The application under Section 5 of the Limitation Act signed by Muni Lal Jain and the affidavit sworn in by him is also competent.

(28) The learned counsel for the appellant has pointed out that in the cause title the name of the appellant mentioned is "Ravinder Jain, Partner of M/s.B.R.PIastic, etc. etc.", meaning thereby it is 'in fact the firm which is filing an appeal though through one of its partners. The memo of appeal, the application and the affidavit are all signed and sworn in by Muni Lal Jain. In his affidavit accompanying the appeal Muni Lal Jain has stated that he was one of the partners of M/s.B.R.PIastic Industries and fully aware of the facts and circumstances of the case also competent to swear the affidavit on behalf of the defendant-Firm.

(29) We may now examine if sufficient cause within the meaning of Section 5 of the Limitation Act has been made out so as to condone the delay in filing the appeal.

(30) First, we would see how many day's delay has there been in filing the appeal.

(31) In the year 1996, the Courts had closed for summer vacation from Monday the 27th May up to Friday, the 28th June, 1996, both days inclusive. The High Court opened on 29th June, 1996. It was a Saturday. The office of the High Court was opened including the filing counter. However, the courts were not functioning i.e. judges were not holding the courts. The appeal was filed on 2.7.96. The Office raised a few objections including one that the appeal was barred by time. It was returned to the appellant's counsel for being filed within a week. The appeal was refiled on 9.7.96 after rectifying the defects. The refiling was accompanied by the application under Section 5 of the Limitation Act.

(32) The application under Section 5 of the Limitation Act and the affidavit filed in support thereof were not specific and therefore when the application came up for hearing on 19.8.96 counsel for the appellant sought for liberty of filing an additional affidavit in support of the application. That liberty was allowed to the appellant. Additional affidavit has been filed on 21.8.96. Munni Lal, partner of M/s.N.R.Plastics Industries, has stated therein :- 1."That I am the partner of M/s.B.R.Plastic Industries, at 5436- Basti Harphool Singh, Sadar Thana Road, Delhi 110 006, and as such I am fully conversant with the facts of the above case and I am authorised and competent to swear this affidavit for and on behalf of the appellant. 2. That I alongwith my son, Shri Ashok Jain, knowing that the Counsel Sh.R.K.Aggarwal, who has been handling the matter at the original side of this Hon'ble Court, has gone to Switzerland and is not in town present, under this impression that the Appeal could be filed only when Sh.R.K.Aggarwal, counsel will be back to India, went to our business tour on 29.6.1996 to Ludhiana. 3. Since the present appeal was to be filed on 1.7.1996, immediately after re- opening of this Hon'ble Court, the counsel M/s.Aggarwal Associates talked at my residence advising that I have to sign some papers and the same are to be filed immediately in the Hon'ble High Court.. 4. On coming to know the above said fact on telephone from my residence, I immediately rushed back to Delhi. I left Ludhiana in the evening of 1.7.1996 and reached Delhi on the morning of 2.7.1996. 5. At about 10.00 A.M. I contacted my counsels in their office on 2.7.1996 itself, signed the papers of the present appeal and the same were filed in this Hon'ble Court."

(33) In substance, what is stated in the affidavit is that Shri R.K. Aggarwal, advocate was handling matter on behalf of the defendant in the civil suit. This fact is corroborated by the proceedings in the civil suit. Obviously the appellant depended on him for filing the appeal. He had gone out of the country and he was not in Delhi. Munni Lal, the partner of the firm, who was dealing with the court case had gone on business tour on 29.6.96 to Ludhiana. Having been informed of his presence being required for filing the appeal he rushed from Ludhiana to Delhi and got the appeal filed on 2.7.96 by signing the papers which were kept ready by the counsel who had come back to Delhi on 1.7.1996.

(34) It is well settled that while dealing with an application under Section 5 of the Limitation Act, a liberal and not pedantic approach has to be adopted. A practical view of the events has to be taken.

(35) In Bhag Singh & Ors. v. Major Daljit Singh & Ors., 1987 Scc (Supp) 685, reiterating the law laid down earlier by the Supreme Court in Union of India v. Ram Charan, and approving the view taken in Premnath v. M/s.Kandoomal Rikhiram, and Hanumandas v. Pirthivi Nath, their Lordships have held :- "The Court while considering an application under Section 5 of the Limitation Act will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injustice but to consider it from the point of taking a view which will advance the cause of justice."

(36) In Bhagwan Swaroop & Ors. v. Mool Chand & Ors., , their Lordships have observed :- "The order of High Court disclosed a hypertechnical approach which if carried to end may result in miscarriage of justice. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is . done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice."

(37) In Binia Bai v. Sikandar Khan, 1993(1) Mpjr 89 having reviewed several decisions of the Supreme Court, the High Court of Madhya Pradesh has held "The law is thus clear. While dealing with applications seeking condensation of delay under Section 5 of Limitation Act or for setting aside of abatement under Rule 9 of Order 22 Civil Procedure Code, the approach has to be liberal and judicious guided by the paramount consideration of not depriving a litigant ordinarily of adjudication of rights on merits. Hypertechnical, too strict, and pedantic approach as may cause injustice has to be avoided. Ignorance of law is no defense in law but the realities of life,' the Courts of law cannot afford to overlook." (para 16)

(38) It was a case of an application under Order 22 Rule 9 of the Civil Procedure Code and Section 5 of the Limitation Act. It was observed that the litigants depend on their lawyers and act on their advise. A litigant .fighting his case with diligence would not ordinarily allow the litigation to be lost by deliberately defaulting in taking steps requisite for keeping the litigation alive so as to secure adjudication of the lis on merits. (Also see Rakesh Kumar Jain v. Devender Singh Mehta for the same view).

(39) In the year 1996 the courts had closed for summer vacation from Monday, the 27th May upto Friday, the 28th June, 1996 both days inclusive, 29th June, 1996, the day on which the High Court opened was a Saturday. It was not a day meant for judicial working; meaning thereby though the registry was opened and functioning judges were not sitting holding the Courts. The judicial functioning of the High Court commenced only on 1.7.96, the Monday. The reason for declaring the High Court opened and thereby permitting the registry to function on Saturday, the 29th June, 1996 appears to provide an early or advance inlet for the heavy institution of various matters which would otherwise take place on the ensuing Monday simultaneously with the commencement of judicial functioning of the Courts. The other idea appears to make available time at the disposal of the Registry so as to keep the matters ready for hearing before the Judges sitting on the Monday following. The lawyers appearing in the Courts for handling the matters may some times plan their vacation outings in a manner so as to be available on Monday simultaneously with the availability of the judges holding the Courts after the vacation. The possibility of an impression having been created and gained ground that the High Court was closed up to Sunday, the 30th June, 1996 and was opening only on 1st July, 1996 cannot be ruled out. Moreover the way, in which the matter was being fought tooth and nail in the civil suit it does not appeal to reason that the appellant would have allowed an adverse injunction order going unchallenged by delaying filing of the appeal by a day or two, if only he would have known that the filing counter of the registry had opened on 29th June, 1996 and if the counsel on whom he was depending for tiling the appeal would have been available to him on the day. Thus the appeal which could have been filed on 29th June, 1996, has in fact been filed on 2nd July, 1996.

(40) In the facts and circumstances of the cases, we do not think that the delay was deliberate or intentional. In our opinion the three days' delay was based on sufficient cause and deserves to be condoned under Section 5 of the Limitation Act. It is accordingly condoned. The appeal would be deemed to have been filed within the prescribed period of limitation.