TARLOK SINGH Vs. GURMIT SINGH AND OTHERS

JUDGEMENT

(1.) THE suit filed by Tarlok Singh, Plaintiff, was dismissed in default on 23 -4 -1979 by the learned Sub Judge Ist Class, Gurdaspur. The suit was fixed for the evidence of the Plaintiff and he sent a telegram expressing his inability to attend the Court due to the death anniversary of some person. The learned Counsel for the Plaintiff failed to attend the Court when the case was called being busy in some other Court up to 3.00 PM. The Plaintiff moved the application for restoration on the same date but the trial Court dismissed his application vide its order dated 23rd April, 1979, by holding that in view of the amended provisions of order XVII Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'the Code') by Act No. 104 of 1976, no sufficient cause has been shown for adjourning the case. The Plaintiff then applied for obtaining certified copy of the order on that very day and he was supplied its copy on May 3, 1979. Instead of filing the appeal, he preferred a revision petition in the High Court on 23 -7 -1979 on the wrong advice of his counsel. The Registry raised an objection calling upon the Appellant to satisfy if such a revision was maintainable. Ultimately, the revision was returned by the High Court to the counsel for the Petitioner and the Petitioner filed the appeal before the District Judge, Gurdaspur, on 9 -10 -1979 alongwith an application for condonation of delay on the ground of pursuing a wrong remedy in the wrong Court due to the wrong advise of Shri Shiv Kumar, Advocate. The learned Additional District Judge dismissed the application under Section 5 of the Limitation Act as well as the appeal being barred by time. Feeling aggrieved against the said order, the Plaintiff has come up in appeal.

(2.) I have beared the learned Counsel for the parties besides perusing the record, The apex Court of India in Collector, Land Acquisition, Anantnag and Anr. v. Mst Katiji and others : A. I. R. 1987 S. C. 1353, had revolutionised the entire case law regarding the principles to be considered for condonation of delay under Section 5 of the Limitation Act, 1963, by holding that the court should adopt a liberal approach in disposing of such applications. The following six principles were enunciated in holding that the Court should adopt a justice oriented approach while assessing sufficient cause for condoning the delay in such like matters:

(3.) 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.