Shri Kaptan And Ors. vs Shri Ram Chander
2006 Latest Caselaw 911 Del

JUDGMENT

B.N. Chaturvedi, J.

1. Admit.

The following substantial question of law is formulated for determination:

1. Whether the First Appellate Court ought to have allowed the application for condensation of delay in filing the appeal by not adopting a strict standard of proof ?

2. The appeal arises out of an order dated 24th December, 1999 of the learned Additional District Judge, Delhi dismissing the appellant's appeal against judgment and decree dated 31st August, 1998 passed by the Court of Civil Judge dismissing the appellant's suit for recovery of possession and mesne profits. The appeal was filed on 16th November, 1998 and according to the appellant there was delay of 5 days after excluding the time consumed in procuring the certified copy of the judgment and decree of the Trial Court.

3. The First Appellate Court has however noted that actually there was delay of 12 days and not of 5 days as pleaded by the appellant.

4. The reason for delay in filing the appeal as stated in the application was that the appellants being illiterate and poor persons could not arrange for expenses which was to be incurred in filing the appeal and further that one of the appellants being a truck driver had gone to Jaipur to deliver certain goods there and to get some money from there which could be used to meet the expenses in filing the appeal. On return, it is alleged, his vehicle went out of order and in the circumstances his return to Delhi got delayed. The First Appellate Court noted that the name of the appellant who is a truck driver and went to Jaipur had not been disclosed in the application nor the particulars of the vehicle and the place where the same had gone out of order found mention in the application. It was further noted that even if one of the appellants went out to Jaipur and could not reach Delhi in time on account of break down of the truck on way back to Delhi, the appeal could have still been filed by the other appellants and to wait for the appellant truck driver was not required. Noticing that the application did not contain requisite particulars which could adequately explain the alleged delay on the part of the appellant truck driver in reaching Delhi so as to file the appeal in time the learned Additional District Judge held that the appellants were required to explain each and every day's delay and as they failed in that regard, the application for condensation of delay in filing the appeal was declined and the appeal was dismissed as time barred.

5. Learned Counsel for the appellants on the strength of two decisions of the Supreme Court in Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. and Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma argued that the learned Additional District Judge was not justified in applying strict standard of proof in regard to sufficiency of ground for condensation of delay and that a liberal approach was required to be adopted to condone the delay to prevent possible miscarriage of justice. In Mst. Katiji's case (supra) the Supreme Court observed that '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'. On the insistence to explain every day's delay it was held that 'this did not mean that a pedantic approach could be made' and 'the doctrine must be applied in a rational common sense pragmatic manner'. It was laid down that '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'.

6. In the present case the suit of the appellants had been dismissed and clearly they did not stand to gain anything by delaying the filing of the appeal. There is nothing to indicate that delay in filing the appeal could be motivated by malafide. Even if an element of negligence in not filing the appeal within time is attributable to the appellants that alone could not suffice to decline the application for condensation of delay and shut out the hearing for a decision of the appeal on merits.

7. Viewed in the light of the law laid down by the Supreme Court in the aforesaid decisions, the impugned order cannot be sustained.

8. Answering the question in the alternative, the appeal is allowed and the impugned order is set aside. As a result the application for condensation of delay in filing the appeal stands allowed and the delay condoned. The matter is remanded to the First Appellate Court to proceed to hear and decide the appeal on merits.

9. The appellants are directed to appear before the First Appellate Court on 29th May, 2006 whereupon a notice of appeal regarding date of hearing shall be issued to the respondent.