MAQSOOD Vs. UPPER DISTT JUDGE IIIRD AZAMGARH

JUDGEMENT

(1.) S. N. Srivastava, J. Impugned herein is the order dated 18-12- 2002 passed by Addl. District Judge, Azamgarh whereby two applications one paper No. 6 C 2 moved for condonation of delay and another paper No. 4 C 2 praying for restoration of Misc. Appeal Bearing No. 100 of 2000 to its number which had been dismissed for default on 15-1-2002, came to be rejected.

(2.) ACCORDING to the facts forthcoming on record, the Misc. Appeal aforestated had been set down for 4- 12-2001 on which date, application for grant of time was made. Thereafter, the petitioners were intimated by their Counsel that next date fixed in the case was 15-2-2002 while the date fixed in the case was 15-1-2002 on which date the appeal had already been dismissed for want of prosecution. It is stated by the learned Counsel for the petitioners that when the petitioners turned up on 15-2-2002, it was cognized to them that the appeal had been dismissed for want of prosecution of 15-1-2002 and therefore, the same day the petitioners moved the two applications aforestated one for condonation of delay and another for restoration of Misc. Appeal to its number. The two applications aforestated lingered for decision before the Court and on 18-12-2002, the Court below dismissed the two applications as being time barred.

(3.) IN Collector Land Acquisition Anantnag v. Katiji, AIR 1987 SC 1353, the apex Court was seized of similar controversy although in different context. IN the said case, the apex Court was concerned with four days' delay in institution of the appeal arising out of a decision enhancing compensation in respect of acquisition of lands for a public purpose by the State of Jammu and Kashmir, which had been rejected by the High Court of Jammu and Kashmir. IN para 3 of the said decision, the apex Court dealing with Section 5 of the Limitation Act observed that the legislature has conferred the power to condone delay in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The apex Court further observed that "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 of the existence of the institution of Courts. " It was further quipped by the apex Court that "it is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court but the message does not appear to have percolated down to all the other Courts in the hierarchy. " The two Judge Bench gleaned following principles for the liberal approach being adopted by the apex Court in such matters: (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 condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) "every day" delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every 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 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. (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.