RADHASHYAM BEHERA Vs. MAHESWAR BEHERA AND ORS.

JUDGEMENT

(1.) HEARD learned counsel for the parties. The Defendant No. 1 in Civil Suit No. 917 of 1994 of the Court of the Civil Judge (Junior Division), Jaleswar has assailed the order passed by the learned Addl. District Judge, Balasore on 14.09.2012 in FAO No. 69/6 of 2007/2012 allowing the appeal filed by the plaintiff -petitioner with a direction to set aside the order of abatement passed by the learned Civil Judge (Junior Division), Jaleswar in the aforesaid case, subject to payment of cost of Rs. 2,500/ - to the respondent. The Respondent No. 1 has filed this writ petition assailing the said judgment.

(2.) THE brief facts leading to the filing of the present writ petition are that the present opposite parties as plaintiffs have filed the Original Suit bearing No. 917 of 1994 of the Court of Civil Judge (Junior Division), Jaleswar against the sole defendant Kartik Chandra Behera for declaration of right, title and interest and also for recovery of possession and for perpetual injunction including other consequential reliefs in respect of the suit land.

(3.) LEARNED counsel for the petitioner at the outset relied upon the case of Balwant Singh (dead) v. Jagdish Singh and others : (2010) 8 SCC 685, wherein the Supreme Court took note of various cases decided by it and held that the words "sufficient cause for making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case and the type of case. The Supreme Court further held that the words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. The Supreme Court further held that in considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. The Supreme Court further held that the decisive factor in condonation of delay is not the length of delay, but sufficiency of a satisfactory explanation. The Supreme Court further held that the extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refilling the appeal after rectification of defects.