MAGAN LAL Vs. IIIRD ADDITIONAL MUNSIF MATHURA

JUDGEMENT

(1.) S. Rafat Alam, J. This petition under Article 226/227 of the Constitution of India is directed against the order of the learned District Judge, Mathura dated 27-9-1986 rejecting the application under Section 5 of the Limitation Act for the condonation of delay of 8 days in filing Civil Revision No. 19of 1986.

(2.) HEARD learned Counsel or both the sides and also perused the order impugned in this petition. 3, It appears that Suit No. 244 of 1973 was filed by the opposite-parties No. 3,4,5 and 6 for permanent injunction restrain ing the defendants from interfering with the possession of the plaintiffs in respect of plots mentioned at the foot of the plaint. The petitioner who was defendant in the suit appeared and contested the suit by filing written statement. Both the parties filed their documents in support of their case upon which issues were framed. How ever, when the defendants' witnesses were being examined, the plaintiffs-opposite-parties moved an application seeking amendment in the plaint. The defendant- petitioner objected the prayer on the ground, inter alia, that under the garb of amendment the plaintiffs want to change the nature of the suit and to fill up the lacuna in the case which is not permissible under law. The learned trial Court allowed the application vide order dated 4-4-1986. Being aggrieved the. defendant-petitioner filed the aforesaid civil revision on 22-7-1986 along with an application under Sec tion 5 of the Indian Limitation Act. The learned District Judge having heard learned Counsel for the parties found that the limitation for filing the civil revision expired on 14-7-1986 whereas it has been filed on 22-7-1986 and, therefore, there was a delay of 8 days. It has further been found that no sufficient reason has been given in the application for condoning the delay, hence rejected. 4. It is a well settled legal position that in the matter of condonation of delay the Court should adopt liberal approach and if sufficient cause is shown normally the delay in filing the appeal or revision should be condoned in order to do substantial justice to parties by deciding the matter on merit. The Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others reported in AIR 1987 SC1353, has heldas under: " (3) The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life- purpose for the existence of the institu tion of Courts. It is common knowledge that this Court has been making a justifiably liberal ap proach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on prin ciple as it is realized that:- (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 con doned 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, ever 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 presumption that delay is occasioned deliberately, or on account of cul pable 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. " 5. From the perusal of the impugned order it is apparent that the medical cer tificate was enclosed with the application under Section 5 of the Act showing that he was ill from 1-7-1986 to 21-7-1986 and, therefore, the delay of 8 days had occurred. However, the learned District Judge did not accept the cause shown by the petitioner merely on the ground that along with the medical certificate the prescrip tion of the Doctor was not enclosed. This approach of the learned Revisional Court was not correct. Since the petitioner has furnished the medical certificate certifying that he was under medical treatment for the period in question, the same ought not to have been rejected in the absence of any other evidence given by the respondents which could have led to disbelieve the cer tificate. Where sufficient cause for con doning the delay is shown, discretion is given 10 the Court to condone the delay and decide the matter on merit. Therefore, in my view, the learned District Judge ought to have considered the explanation furnished by the petitioner. I am further of the view that the cause shown by the petitioner for the delay in filing the civil revision is sufficient and, therefore, the learned Revisional Court has fell in error in rejecting the application. In that view of the matter, the impugned order deserves to be set aside. 6. In view of the aforesaid discussions and in the circumstances, this petition is allowed. The impugned order of the learned. District Judge dated 27-9-1986 is set aside on payment of cost of Rs. 1,000 (Rs. One thousand) to the other side which is to be deposited by the petitioner before the Court of learned District Judge. The learned District Judge shall now decide the revision on merit after hearing both the parties provided the petitioner deposits the aforesaid amount of costs. It is desirable that the civil revision may be decided ex-peditiously preferably within a period of three months from the date of receipt of the copy of the order. Petition allowed. .