Rajiv Makhijani (Huf) vs Lal Babu
2007 Latest Caselaw 2251 Del

JUDGMENT

Manmohan Sarin, J.

1. This is an appeal against judgment/decree dated 18.8.2006 dismissing the suit. The appeal is accompanied with an application under Order 41 Rule 23 (a) CPC read with Section 5 of Limitation Act for condensation of delay of two months and 12 days in filing the appeal. CM 6892/2007 is another application moved for condensation of delay in refiling the appeal. Learned Judge dismissed the suit holding that appellant/plaintiff had failed to adduce any evidence. The respondent/defendant made a statement that he did not desire to lead any evidence. The Court thereupon passed the impugned judgment/order on 18.8.2006.

2. It is the appellant's case that the appellant/plaintiff was being represented by late Mr.O.P.Soni, Advocate in the matter. The appellant had been diligently following the suit. Issues had been framed on 1.6.2006. The case was listed for recording the appellant/plaintiff's evidence on 18.8.2006. This was the first date fixed for recording of evidence. Unfortunately by that time, the appellant's counsel Mr. O.P.Soni was hospitalised and remained so from July onwards till his demise in the last week of December, 2006.

3. The appellant states he had been informed on telephone that junior of Mr. O.P.Soni would be obtaining an adjournment in the case on 18.8.2006, on the ground of hospitalisation of Mr. Soni. The appellant says that when he checked thereafter, he was informed that the next date had been fixed on 28.11.2006 based on the information given by junior of Mr. O.P.Soni. It transpires that none had appeared on behalf of the appellant before the Court on 18.8.2006 and in fact the judgment and decree dismissing the suit was passed on that date itself and the information regarding the matter being adjourned to 28.11.2006 was incorrect.

4. Be that as it may, in view of Mr. Soni having passed away in the last week of September, 2006, the appellant did not consider it appropriate to immediately follow up with his son and visited the counsel's house in the first week of December, 2006. There the appellant was advised to get in touch after one or two weeks. It was late in the month of December that the appellant went to seek return of his files and the son to Mr. Soni asked him to pay balance professional charges. It was only in the first week of January, 2007 after being satisfied with the accounts in respect of professional charges, that the appellant got the file back from the son of late Mr. O.P.Soni.

5. It is in these circumstances that the appellant's new counsel Mr. Amit Punj inspected the file and came to know that the suit had been dismissed on 18.8.2006 itself and the file had been consigned to record room. The appellant applied for certified copies immediately thereupon on 15.1.2007 and the same were available on 23.1.2007 and the present appeal was preferred on 29.1.2007. Learned Counsel submits that in fact the aforesaid application for condensation of delay in preferring the appeal also contains the basic facts pertaining to the appeal. It was on account of the aforesaid facts and events that the appellant was unable to pursue the suit which resulted in the suit being dismissed in the absence of the appellant on 18.8.2006.

6. Mr. Sanjeev Mahajan submits that he has sufficient cause for the absence on 18.8.2006 and sufficiently explained the delay entailed on account of the peculiar facts and circumstances arising from the hospitalisation of the appellant's counsel and his ultimate demise and the time taken in obtaining the file from the counsel's office and taking appropriate steps for filing of the appeal.

7. We have heard Mr. Singhal in opposition to the above application for condensation of delay and the appeal on merits. Mr. Singhal submits that even though there are extenuating factors arising out of the demise of the counsel, there are several unexplained factors left out of the appellant's explanation who claims to have been diligently following up the case, regarding non- appearance on 18.8.2006 itself. Secondly, he submits that the explanation sought to be given with regard to the date 28.11.2006 being fixed as the next date by the counsel on the basis of the information given by Mr. O.P.Soni (deceased) does not inspire confidence inasmuch as on 18.8.2006 none had appeared when the case had been dismissed.

Be that as it may, we are of the view that the appellant has made out a plausible and tenable cause for non-appearance on 18.8.2006 and has sufficiently explained the delay in preferring of the appeal. Reference in this case may be made to Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. wherein it was held that 'court should adopt liberal and justice oriented approach.' It was further held '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.' It was observed that the court should lean towards doing substantial justice to parties by disposing of matters on merits. Reference may also be invited to the case of Calcutta Municipal Corporation v. Pawan Kumar Saraf and Anr. wherein it was held 'In construing Section 5 of the Limitation Act it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favor of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that is sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.' Besides, it is also not necessary to explain each day's of delay especially when the supervening and overwhelming circumstances are such as in the present case.

In view of the discussion in preceding para 6 and 7 we are of the view that this is a fit case where suit ought to be tried on merits. Applying the principles initiated in judicial pronouncements above we condone the delay in filing of the appeal and its refiling. CM No. 6890/2007 and 6892/2007 are allowed. We also set aside the impugned order dismissing the suit, subject to payment of costs of Rs.10,000/-. Rs.5,000/- to be paid to the respondent and Rs.5,000/- to be paid to Delhi High Court Legal Services Committee. Let the parties appear before Trial Court on 10th January, 2008.