J.M. Ramachandra & Sons vs Customs Excise And Gold (Control) ...
2001 Latest Caselaw 1540 Del

JUDGMENT

Arijit Pasayat, C.J.

1. In this petition under Article 226 of the Constitution of India 1950 (in short the 'Constitution') challenge is to the order dated 9th November 2000 passed by the Customs, Excise & Gold (Control) Appellate Tribunal (in short the 'Tribunal') refusing to condone the delay in filing of the appeal under Section 129A of the Customs Act, 1962 (in short the 'Act) and consequentially directing dismissal thereof.

2. Factual background highlighted by the petitioner is essentially as follows:

Petitioner, a trading unit, imported a consignment of 44000 pieces of video cassettes of make of Panasonic NV, E-180, from the United Arab Emirates. A bill of entry bearing No. 238737 was filed at the Chennai Customs House of clearance. An audit of the bill of entry in respect of the declaration made by the petitioner was conducted and it was found that the concerned goods were covered by Tariff heading 8523.90. The Customs Authorities were of the view that there was discrepancy in the description of the goods and the same was not complete. The cassettes were of professional grade and consequentially more expensive. Investigation into the matter was carried out and the petitioner was asked to state whether the cassettes were VHS, Betacam, etc. and also to indicate the width of the same. Petitioner submitted that the video cassettes were of VHS type and the width of each cassettes was 12.50mm and of 180 minutes duration. The Customs Authorities did not accept petitioner's stand and the articles were seized under a reasonable belief that those were liable for confiscation under Section 111(d) of the Act. Petitioner requested the Commissioner of Customs, Custom House, Madras for waiver of show cause notice and prayed for a personal hearing in the matter. Accordingly personal hearing was granted. Petitioner's stand was that no specific license is required for import of blank video cassettes. However, rejecting the submissions and contentions of the petitioner, the Commissioner passed an order on holding that the import of goods in question is restricted as they are consumer goods and the goods are permitted to be imported only against a license, which the petitioner did not possess. Therefore confiscation of the goods under Section 111(d) of the Act read Section 3(3) of the Foreign Trade Development and Regulation Act, 1992 (in short 'Foreign Trade Act') was directed. Penalty of Rs. 1,57,000/- was also imposed under Section 112A of the Act. However petitioner was permitted to redeem the goods on payment of Rs. 3,94,000/- as fine.

3. The petitioner filed an appeal before the Tribunal, and Along with the appeal, an application for condensation of delay was filed. The appeal against the Commissioner's order was required to be filed within three months i.e. by 14th February 2000, taking into account the fact that 12th and 13th February 2000 were Saturday and Sunday respectively. The appeal was in fact filed on 17th April 2000. Petitioner tried to explain the delay saying that the partner in charge was ill from 5th February 2000 to 16th February 2000. During the aforesaid period of sickness, papers were mixed up and could not be located and were actually located on 21st February 2000. However all the relevant papers were not available and had to be obtained from the concerned Custom House Agent, who handed over them on 10th April 2000. Tribunal on consideration of the material on record came to hold that the delay had not been explained properly or convincingly. It was also observed that, taking into account the material highlighted by the petitioner, there was inordinate delay in filing the appeal and major portion of the delay had not been properly explained. The Tribunal therefore, not finding any justifiable reason to condone the delay, rejected the application and consequentially appeal No. C/132/2000 was dismissed. The order of the Tribunal is dated 2nd November 1999 and was received by the petitioner on 11th November 1999.

4. In support of the writ petition, learned counsel for the petitioner submitted that the Tribunal has erred in holding that there was no justifiable reason for condoning the delay. It has failed to take into account relevant material and an improper conclusion in respect of materials highlighted to explain the delay was drawn and therefore the order is vulnerable. In response, learned counsel for UOI raised a preliminary objection, contending that the impugned order can only be assailed before the Apex Court under Section 130E of the Act and the writ petition is therefore not maintainable. According to him, dismissal of the application for condensation of delay is really an order in terms of Section 129B of the Act and therefore the order can only be assailed in an appeal to the Supreme Court. Strong reliance is placed on the decision of Apex Court in Mela Ram and Sons v. Commissioner of Income-tax . Additionally, it is submitted that the Tribunal on facts has come to hold that there was no justifiable reason to condone the delay. This is essentially a finding of fact arrived at by taking into consideration relevant materials and while exercising jurisdiction under Article 226 of the Constitution it is not permissible to hold the order to be illegal. Responding to the challenge regarding maintainability, learned counsel for the petitioner submitted that the provisions, which were under consideration in Mela Ram's case (supra), are entirely different and the decision has no application to the facts of the case. It is also submitted that the rule relating to exhaustion of alternative remedy is not invariable in nature and in appropriate case the Court can interfere. It is also submitted that though the findings of the Tribunal are characterised to be factual yet relevant aspects having not been taken into account and no reason having been indicated as to why the explanation offered was unsatisfactory the order is liable to be set aside. According to him, a very technical view is not to be adopted in matters relating to limitation.

5. In order to appreciate rival submissions, a few provisions of the Act and the Indian Income-tax 1992 (in short 'I.T. Act') need to be taken note of. It is to be noted that Mela Ram's case (supra) was rendered with reference to certain provisions of the I.T. Act. Section 129A of the Act deals with appeals to the Appellate Tribunal which, so far as relevant, reads as follows:

"129A. Appeals to the Appellate Tribunal- (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order-

(a) a decision or order passed by the Commissioner of Customs as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 128A;

(c) an order passed by the Board or the Appellate Commissioner of Customs under section 128, as it stood immediately before the appointed day;

(d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before that day:

Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to-

(a) any goods imported or exported as baggage;

(b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;

(c) payment of drawback as provided in Chapter X, and the rules made there under;

Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where-

(i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine a lieu of confiscation under section 125; or

(ii) in any disputed case, other than a case where the determination of any question having a relation to the rat of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(iii) the amount of fine or penalty determined by such order, does not exceed Fifty thousand rupees.

1A Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 40 of the Finance Act, 1984 before the Appellate Tribunal and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or matter under section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section.

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29(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Customs, or as the case may be, the other preferring the appeal.

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29(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objection after expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.

29(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, in the case of an appeal made on or after the 1st day of June, 1993, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of-

(a) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates in one lakh rupees or less, two hundred rupees;

(b) where the amount of duty an interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than one lakh rupees, one thousand rupees:

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross objections referred to in sub-section (4)."

Section 129B deals with orders of Appellate Tribunal and read as follows:

"129B. Orders of Appellate Tribunal - (1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary."

Section 130E on which strong reliance has been placed by the respondents relates to appeal to Supreme Court and reads as follows:

"130E. Appeal to Supreme Court - An appeal shall lie to the Supreme Court from -

(a) any judgment of the High Court delivered on a reference made under section 130 in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or

(b) any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment."

Sections of the I.T. Act, so far as relevant, read as follows:

"Section 30(2) - The appeal shall ordinarily be presented within thirty days of the payment of the tax deducted under sub-section (3A), (3B) or (3C) of section 18 or of receipt of the notice of demand relating to the assessment or penalty objected to or of the order in writing notifying the amount of total income on which the determination under sub-section (5) of section 23 was based and the apportionment thereof between the several partners or of the loss computed under section 24 or of the intimation of the refusal to pass an order under sub-section (1) of section 25A, or to register a firm under section 26A or of the date of the refusal to make a fresh assessment under section 27, or of the intimation of an order under sub-section (1) of section 48, 49 or 49F, as the case may be; but the Appellate Assistant Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period.

(3) The appeal shall be in the prescribed form shall be verified in the prescribed manner.

Section 31 (3)- In disposing of an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment-

(a) confirm, reduce, enhance or annual the assessment, or

(b) set aside the assessment and direct the Income-tax Officer to make a fresh assessment after making such further inquiry as the Income-tax Officer thinks fit or the Appellate Assistant Commissioner may direct, and the Income-tax Officer shall thereupon proceed to make such fresh assessment and determine where necessary the amount of tax payable on the basis of such fresh assessment,

or, in the case of an order cancelling the registration of a firm under sub-section (4) of section 23 or refusing to register a firm under sub-section (4) of section 23 or section 26A or to make a fresh assessment under section 27,

(c) confirm such order, or cancel it and direct the Income-tax Officer to register the firm or to make a fresh assessment, as the case may be,

or, in the case of an order under sub-section (2) of section 25 or sub-section (2) of section 26 or sections 48, 49 or 49F,

(d) confirm, cancel or vary such order, or in the case of an order under sub-section (1) of section 25A,

(e) confirm such order or cancel it and either direct the Income-tax Officer to make further inquiry and pass a fresh order or to make an assessment in the matter laid down in sub-section (2) of section 25A,

or, in case of an order section 28 or sub-section (6) of section 44E or sub-section (5) of section 44F or sub-section (1) of section 46,

(f) confirm or cancel such order or vary it so as either to enhance or reduce the penalty,

or, in case of an appeal against a computation of loss under section 24,

(g) confirm or vary such computation, or in the case of an appeal under sub-section (1A) of section 30,

(h) decide that the person is or is not liable to make the deduction and in the latter case direct the refund of the sum paid under sub-section (6) of section 18:

Provided that the Appellate Assistant Commissioner shall not enhance an assessment or a penalty unless the appellant has had a reasonable opportunity of showing cause against such enhancement.

Provided further that at the hearing of any appeal against an order of an Income-tax Officer, the Income-tax Officer shall have the right to be heard either in person or by a representative.

33(2A)- The Tribunal may admit an appeal after the expiry of the sixty days referred to in sub-sections (1) and (2), if it is satisfied that there was sufficient cause for not presenting it within that period.

33(3)- An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, and shall, except in the case of an appeal referred to in sub-section (2), be accompanied by a fee of one hundred rupees."

5. The language of Section 31 of I.T. Act and Section 129B are contextually and conceptually same. In Mela Ram's case (supra), it was noticed by the Apex Court that there was conflict of opinion amongst different High Courts on the question whether an order dismissing an appeal presented under Section 30 as out of time is one under Section 30(2) or under Section 31 of the Act. If it is former, there is no appeal provided against it; if it is the latter, it is open to be assailed under Section 33. The Bombay High Court held that when an appeal is presented out of time and there is no order of condensation of delay under Section 30(2) there is, in law, no appeal before the Appellate Assistant Commissioner and that an order by him rejecting the appeal does not fall within Section 31 and is not appealable. It was further held that if the appeal is admitted after an order of condensation is made under Section 30(2) an order subsequently passed dismissing it on the ground of limitation would be one under Section 31 and would be appealable under Section 33 and the result will be the same even when the appeal is admitted without any order of condensation under Section 30(2). This view was reflected in Commissioner of Income-tax v. Mysore Iron & Steel Words K.K. Porbunderwalla v. Commissioner of Income-tax Champalal Asharam v. Commissioner of Income-tax The High Court of Allahabad also took the same view in Shivnath Prasad v. Commissioner of Income-tax The Municipal Board, Agra v. Commissioner of Income-tax and Mohd. Naim Mohd. Alam v. Commissioner of Income-tax Similar view was expressed by the Punjab High Court in Dewan Chand v. Commissioner of Income-tax (1951) 20 ITR 621.

6. The appeal before the Apex Court in Mela Ram's case (supra) was founded on the judgment where Dewan Chand's case (supra) was relied upon. But the Punjab High Court took a different view in General Agenies (India) Ltd. v. Commissioner of Income-tax . The Madras High Court had held that an order declining to excuse the delay and rejecting the appeal is one under Section 31 whether it is made before the appeal is admitted or after. The Calcutta High Court also took a similar view in Gour Mohan Mullick v. Commissioner of Agricultural Income-tax The stand of the appellant in Mela Ram's case (supra) before the Apex Court was that an order of Appellate Assistant Commissioner refusing to condone the delay is one Section 30(2) and only the order that could be passed under that Section was one excusing delay and an order refusing to condone it will fall outside it and that such an order could only be made under Section 31. The Apex Court did not accept the contention and observed as follows:

"We find it difficult to accede to this contention. When power is granted to an authority to be exercised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant. And if the Appellate Assistant Commissioner has a discretion to excuse the delay, he has also a discretion in appropriate case to decline to do so. We are therefore of the opinion that the refusal to excuse delay is an order under section 30(2)."

7. As regards the views expressed by the Bombay High Court that an appeal which is filed beyond period of limitation is in the eye of law no appeal unless and until there is condensation of delay and that in consequence an order passed thereon cannot he held to be passed in appeal so far as to fall within Section 31. The Apex Court further observed as follows:

"Now a right or appeal is a substantive right, and is a creature of the statute. Section 30(1) confers on the assessed a right of appeal against certain orders, and an order of assessment under section 23 is one of them. The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income-tax Officer. Then we come to section 30(2), which enacts a period of limitation within this right is to be exercised. If an appeal is not presented within that time does that cease to be an appeal as provided under section 30(1)? It is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in section 30 (20 it is liable to be dismissed in liming. There might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, section 28 of the Limitation Act; but there is none such here. On the other hand, in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately under section 30(2), the legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law. In Nagendranath Dey v. Suresh Chandra Dey, Sir Dinshaw Mulla construing the word "appeal" in the third column of article 182 of the Limitation Act observed:

"There is no definition of appeal in the Code of Civil Procedure, but there Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary expectation of the term and that it is no less an appeal because it is irregular or incompetent."

There observations were referred to with approval and adopted by this Court in Raja Kulkarni and Others v. The State of Bombay. In Promotho Nath Roy v. W.A. Lee, an order dismissing an application as barred by limitation after rejecting an application under section 5 of the Limitation Act to excuse the delay in presentation was held to be done "passed on appeal" within the meaning of section 109 of the Civil Procedure Code. On the principles laid down in these decision, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal."

8. The other question that was considered by the Apex Court is whether the order could be described as one under Section 31. It was held that the said provision was only relating to the hearing and dismissal of appeal and if an order dismissing an appeal as barred by limitation is one passed in appeal, it must fall within Section 31. As Section 33 confers a right of appeal against all orders passed under Section 31 it must also be appealable.

Finally it was concluded that there was abundant authority for the view that Section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues such as limitation and the like. Thus in the background of what has been stated by the Apex Court in Mela Ram's case (supra) the inevitable conclusion is that an order passed by the Tribunal refusing to condone the delay is one passed in the appellate jurisdiction of the Tribunal in terms of Section 129B. The next question is whether an appeal against it would lie to the Supreme Court. Learned counsel for the petitioner submitted that the order passed by the Tribunal must relate amongst other things to the determination of any question having relation to the rate of duty of customs or to the value of the goods for the purposes of assessment. It is his stand that the Appellate Tribunal has not determined any question having relation to the rate of duty or the value of goods.

9. Learned counsel for the respondent submitted that the case was one where the doctrine of merger applies. The Apex Court had occasion to consider the principle relating to said doctrine in many cases. In the case of State of Madras v. Madurai Mills Co. Ltd. , the Apex Court, observed that the doctrine of merger was not a doctrine of rigid and universal application. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provision conferring the appellate or revisional jurisdiction. Basically, therefore, unless the appellate authority has applied its mind to the original order or any issue arising in appeal while passing the appellate order, one should be careful in applying the doctrine of merger to the appellate order. The view was again reiterated in State of Orissa and Others v. Krishna Stores (1997) 104 STC 594.

10. In Rani Choudhury v. Lt Col Suraj Jit Choudhury, the following observations are of great significance:

"14. An appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal. An appeal may be disposed of also for non-prosecution thereof. Though the disposal of the appeal on the ground of non-prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results in the disposal thereof. An appeal may also be dismissed on the ground of limitation, if condensation of delay in filing the appeal is not allowed by the Court. An appeal may also be liable to be dismissed for non-compliance with any condition relating to the filing of the appeal and also for other reasons"

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"20. The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the trial court with the decree if any, of the appellate Court, but there cannot be any manner of doubt that when an appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitaion results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex parte decree becomes incompetent after the disposal of the appeal and cannot be entertained."

11. In the background of language of Section 130E, it would not be proper to hold that the order passed by the Tribunal dismissing the appeal as barred by limitation is one covered by clause (b) of Section 130E. The order cannot be subjected to appeal before the Supreme Court. That being the position the writ petition is maintainable.

12. Further question which needs adjudication is whether any interference is called with the order passed by the Tribunal. The appeal was dismissed on the ground of limitation holding that no sufficient cause was shown for condoning the delay in presentation. It has been emphasized by the learned counsel for the respondent as indicated supra that the finding is factual and therefore, Article 226 is not available to be exercised. As a general proposition of law, it cannot be gainsaid that factual conclusions unless perverse are not available to be interfered with ny any exercise of jurisdiction under Article 226 of the Constitution. At the same time it has to be borne in mind that liberal approach is to be adopted while dealing with an application for condensation. Learned counsel for the respondent referred to the facts in the instant case showing there are no extenuating circumstances to adopt a liberal view. In Courts where British jurisprudence prevails statutes of limitation are jurisprudential necessities. Limitation is said to be "a statute of repose". Corpus Jurisdiction Secondum, Vol 53 at page 901: "Statutes of limitation are statutes of repose, the object of which is to suppress fraudulent and stale claims from springing up at great distance of time and surprising the parties or their representatives when all the proper vouchers and evidence are lost or the facts have become obscure from the lapse of time or the defective memory or death, or removal of witnesses.... That the statute (of limitation) is for the benefit and repose of individuals and not to secure general objects of policy and morals" In U.K. the most ancient case is that of A 'Court v. Cross (1875) 3 Bing 325 at 360 in that limitation was described 'an act of peace'. In an opinion expressed in Moschi v. Lep Air Services Ltd.,. (1976) 2 All. E.R. 411 the House of Lords observed: "Truth may be shut out (by operation of limitaion) but society considers truth may be brought.... The fundamental principle (is) that there should be some end to litigation...." We find solace in what is stated to be the eternal varieties of life and law that statutes of limitation achieve peace and good administration and do not advance morals and goods conduct.

13. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitaion fixes -a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitaion is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (It is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

14. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his case. There is no presumption that delay in approaching the court is always deliberate. Apex Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, vide Shakuntala Devi Jain v. Kuntal Kumari, and State of West Bengal v. The Administrator Howrah Municipality, .

15. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. It must be brone in mind that he is a looser and he too would have incurred quit a large litigation expenses. It would be a salutary guidelines that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss. We have copiously referred to the view expressed by the Apex Court in N. Balakrishanan v. M Krishnamurthy for the above view of ours.

16. The expression "sufficient cause should be considered with pragmaticism in justice oriented approach rather than technical detection by sufficient cause for explaining every day's delay. In Brij Inder Singh v. Kanshi Ram, AIR 1917 PC 156 it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain's case (supra) , it was held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. In O.P. Kathuria v. Lakhmir Singh (dead) , it was held that if the refusal to condone the delay results in grave miscarriage of justice it would be a ground to condone the delay. Delay was accordingly condoned.

17. 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. 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. Judiciary is not respected on account of its power to ligalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. These views were highlighted by the Apex Court in State of Haryana v. Chandra Mani 1996 (1) AIR SCW 1672.

18. We find that there is no finding recorded by the Tribunal that there was any deliberate attempt in delaying the matter or that there was culpable negligence or there was lack of bona fides. In fact, except barely saying that there was no justifiable delay, reasons for such conclusions have not been indicated. Reasons constitute heart beat of every order. If there is no reason, there is no life in the order. Looked at from that background we find that the Tribunal's order refusing to condone the delay is not appropriate. Explanation offered by petitioner cannot be said to be hollow or fanciful. The same has not been found to be false. The delay deserved condensation, which we direct.

19. Accordingly, we set aside the order of the Tribunal and direct it to hear the appeal on merits, if it is otherwise free from defects. It is needless to say that we have not expressed any opinion on the merits of issues involved. Writ petition is allowed to the extent indicated.