PREM SINGH ETC Vs. MAHENDER SINGH

JUDGEMENT

(1.) THIS is an application under Section 5 of the Indian Limitation Act read with Section 151 of the Code of Civil Procedure for condonation of delay of 4 months and 25 days in filing the present Appeal. The facts pleaded for such a prayer are that the applicant is an illiterate and rustic villager; he was not aware of the Court procedure; the judgment and decree passed by the learned Ist Appellate Court is dated 9. 4. 1997 and as such the appeal ought to have been filed by 11. 7. 1997. The applicant claims that he fell ill in the first week of June 1997. He was under treatment in the village and thereafter he contacted Dr. Gujarai at Sonepat under whose treatment he continued for quite some time and he was suffering from infective hepatitis jaundice and was adviced complete bed rest. After two months he recovered and when he thought to attend his daily pursuit of life he resumed his workings in the fields and after working for two days he again fell ill and was advised complete rest for two months; thereafter he recovered and came to Chandigarh in December 1993 and after engaging counsel filed the present appeal on or about 5th December, 1997. This application for condonation of delay was contested by the non applicant respondents in appeal who filed the reply stating therein that the applicant never fell ill during the relevant period and, in fact, he was doing his normal day to day function in the fields and at his house; infact, the applicant is stated to be a milk vendor as well as an agriculturist and the respondent non applicant also belongs to the same village and he had seen him performing his daily work. It was stated that the applicant does not disclose any sufficient reason for condonation of delay and consequently the application should be dismissed. A rejoinder to the reply was also filed where the averments made in the reply were specifically disputed. It was stated that the delay has been sufficiently explained. The medical certificate which was annexed to the petition was stated to be not a procured one and the applicant was genuinely sick. The medical certificate dated 13. 6. 1997 issued by Dr. Gujaria M. D. (Medicine), Sonepat, has been filed in the Court. It has been stated in that certificate that applicant was suffering from infective hepatitis 'c' jaundice and was advised rest etc. The period of sickness specified in the certificate is 13. 6. 1997 to 27. 11. 1997. The above facts on their face value supported by a medical certificate would constitute sufficient cause for condonation of delay in filing the appeal. The reply filed on behalf of the respondent stating that the applicant was not sick at all and was doing his day to day work in the village does not aspire much of confidence primarily for the reason that the application is supported by an affidavit and even a medical certificate has been annexed in support thereof. The non applicant may be a villager of the same village but the Court cannot lose sight of the fact-that he-is the opposite party in the present case, and nothing prevented him from filing an affidavit of a responsible citizen of the village. Admittedly, that has not been done in the present case and the Court cannot presume that the medical certificate issued by a doctor is a forged one unless and until there was some material before the Court to doubt the authenticity of the certificate. Even the necessary facts have not been pleaded in the reply. The learned counsel for the applicant has relied upon a case of 'collector Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. , A. I. R. 1987 S. C. 1353 to argue that in the matters of limitation the Court should adopt a liberal approach. It is correct that in this case Hon'ble Supreme Court held that the approach of the Court must be to do even handed justice on merits in preference to the approach which scuttles the decision on merits. A reference can also be made to a recent judgment of the Hon'ble Supreme Court in the case of P. K. Rama Chandran v. State of Kerala and Anr. , J. T. 1997 (8) S. C. 189, the Court expressed the view that where explanation for delay is reasonable or satisfactory Court may be justified in condoning the delay but where the explanation is neither reasonable nor satisfactory the Court would have no power to condone the delay because reasonable explanation is a pre-requisite to condoning of delay. Though in this case the Hon'ble Supreme Court has declined to condone the delay.

(2.) I am of the considered view that the applicant has been able to explain the delay and has shown sufficient cause for condonation of delay thereof. The plea of limitation does give rise to a benefit in law to the opposite party but the condonation of such delay itself being prescribed under the provisions of Limitation Act gives wide power to the Court to condone the delay in the facts and circumstances of the case and especially when sufficient explanation is rendered in support thereof. For the reasons aforestated, this application is allowed. The delay of 4 months and 25 days is condoned. The appeal be listed for hearing on merits for admission.