M.M. Kumar, J.@mdashThis petition filed u/s 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is directed against the order dated 23.4.2001 passed by the Addl. District Judge, Kaithal dismissing the application of the plaintiff-petitioners filed u/s 5 of the Limitation Act, 1963 (for brevity the Act) seeking condonation of 22 days delay in filing the appeal. The principal reason which persuaded the Addl. District Judge to dismiss the application is the version put forward by the plaintiff-petitioners namely he had gone on pilgrimage from where he returned on 5.8.2000 could not be believed because his presence had been recorded at Kaithal on 29.7.2000 by the Court of Ms. Shalini Singh, Judicial Magistrate 1st Class, Kaithal in her order Ex.Rule 1.
2. Moti Ram, father of plaintiff-petitioner Nos.2 to 6 who is legal representatives has filed a suit for permanent injunction alongwith plaintiff-respondent No.3 against defendant-respondent Nos.1 and 2. The suit of the plaintiff-petitioner and also that of plaintiff-respondent No.3 was dismissed under Order 17 Rule 3 of the Code on 7.6.2000. With the Object of filing appeal, an application for issuing certified copy was filed on 9.6.2000. The certified copy was prepared on 30.6.2000. For the reason that there were vacations from 15.6.2000 to 15.7.2000, the Courts reopened on 17.7.2000 because 16.7.2000 was a Sunday. The appeal was instituted on 8.8.2000 i.e. after a delay of 22 days.
3. The main reason for the delay pleaded in the application was that petitioner Moti Ram was ill and after prolonged illness he died on 12.9.2000. He had gone for pilgrimage on 20.6.2000 and was to come back on 10.7.2000. However, because of illness he was unable to come and in this process the filing of the appeal was delayed. He came back on 5.8.2000 and the appeal was filed on 8.8.2000. The Addl. District Judge framed an issue and recorded the evidence as to whether there was reasonable ground to condone the delay in filing the appeal and proceeded to record the finding that it is unbelievable that once he had appeared before the Judicial Magistrate, 1st Class, Kaithal on 29.7.2000, he was outside Kaithal on that date. On the ground that presumption of truth and correctness attaches to judicial record, the learned Addl. Distt. Judge concluded that the version put forward by the plaintiff-petitioners cannot be accepted and believed. For those reasons, the application u/s 5 of the Act was dismissed and consequently the appeal was also dismissed.
4. The order dated 29.7.2000 passed by the Judicial Magistrate, 1st Class records as under:-
"Complainant in person.
All accused on bail.
Counsel for complainant is on bed rest and unable to appear in Court. Therefore, case is adjourned to 24.11.2000 for the purpose already fixed."
From the perusal of the above order, the presence of Moti Ram, father of the plaintiff-petitioner Nos.2 to 6 is deemed to be recorded but at the same time a liberal approach has to be followed in these type of cases. The right of one appeal is recognised in all jurisdiction. Such a right cannot ordinarily be defeated by any technicalities of law. Therefore, whether Moti Ram father of the plaintiff-petitioner Nos.2 to 6 was present before the Magistrate or not on 29.7.2000 does not need to be gone into. Suffice it to mention that cogent evidence has been led by examining Sher Singh son of Munshi Ram who had gone with Moti Ram on pilgrimage. Even if Moti Ram is deemed to be present before the Magistrate on 29.7.2000 a funnel delay of ten days would have to be considered and condoned.
5. The Supreme Court while interpreting the expression ''sufficient cause'' in
"Thus, it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a strait-jacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the partition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides, can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the. parties either way."
6. In view of the above, this revision petition is allowed and the delay in filing the appeal is condoned and the District Judge, Kaithal is directed to consider the appeal as having been filed within the period of limitation.
7. The parties through their counsel are directed to appear before the District Judge, Kaithal on 20.9.2002.
