Suman Shyam, J.@mdashHeard Mr. A.M. Borbhuyan, learned counsel appearing for the appellants. Also Heard Mr. M.J. Quadir, learned counsel appearing for the respondents.
2. The second appeal has been preferred against the judgment and order dated 08.01.2014 passed by the learned Civil Judge, Hailakandi in Title Appeal No. 45/2012 dismissing the appeal by refusing to condone the delay of 31 days in preferring the Title Appeal by the present appellant.
3. The brief facts of the case is that the respondents as plaintiffs had filed Title Suit No. 17/2009 in the Court of learned Munsiff No. 1, Hailakandi intera lia praying for a decree declaring their right, title and interest and also for recovery of khas possession.
4. The said suit was decreed by the learned trial Court by the judgment and decree dated 12.10.2012. Being aggrieved by the said judgment and decree dated 12.10.2012, the defendants/appellants had preferred Title Appeal No. 45/2012 before the Court of learned Civil Judge, Hailakandi with a delay of 31 days in presenting the appeal. The appeal was also accompanied by an application filed under Section 5 of the Limitations Act, 1963, praying for condonation of delay.
5. The delay has been sought to be explained by the petitioner by stating that in an around the time when the judgment and decree was passed by the trial Court, the appellant was suffering from various ailments. Having come to the know about the decree passed in Title Suit No. 17/2009 the appellant had suffered physical and mental set back to such an extent that he was not in a position to take any steps for even obtaining the certified copy of the judgment and decree passed by the learned trial Court. Having substantially recovered from his ailments, the appellants had immediately contacted his counsel who had thereafter made an application on 12.12.2012 for obtaining certified copy of the judgment and decree. A copy of the judgment and decree could be obtained by him only on 19.12.2012. Thereafter, necessary step for preparation of the appeal was undertaken by his learned counsel. Eventually the appeal could be made ready and presented before the learned First Appellate Court with a delay of 31 days. In support of his case, the appellants had produced copies of prescription and medical certificates issued by his doctor, showing the date of his ailments.
6. The respondents/opposite parties had opposed the prayer made by the appellant for condonation of delay stating that the delay was purely on account of laches and negligence on the part of the appellant, who has failed to provide sufficient explanation on account of the same.
7. Upon hearing the learned counsels for the parties, the First Appellate Court had rejected the application filed by the appellant praying for condonation of delay holding that even assuming that the petitioner was taken ill for the period as claimed by him, even in that case, the appellant has failed to explain the delay of 8 (eight) days after delivery of the certified copy of the judgment and order passed by the trial Court.
8. I have heard the learned counsels for both the parties. Considering the fact that the Title Appeal has been disposed of only on the point of limitation, with the consent of the learned counsels for both the parties, this appeal is taken up for disposal at the stage of admission.
9. Mr. Barbhuiyan, learned counsel appearing for the appellants submits that although the power of condonation of delay is discretionary power available with the Court, yet in the instant case, learned First Appellate Court misconstrued the true purport and intent of Section 5 of the Limitation Act, 1963 as well as proposition of law regarding condonation of delay as enunciated by the Judicial Pronouncement of the Hon''ble Apex Court made from time to time. Since the appellant had mentioned that he was suffering from ailments and after obtaining the certified copy of the judgment and decree, the same was handed over to the learned counsel for the preparation of the appeal, hence, there was no justification for the learned First Appellate Court to non suit the appellant holding him guilty of 8 (eight) days of delay in presenting the appeal after receipt of the certified copy.
10. Learned counsel further submits that it is apparent from the facts and circumstances of the case that 8 days time was consumed in preparation of the appeal which is absolutely probable and a bonafide stand taken by the appellant. Such being the position, there was sufficient explanation furnished by the appellants so as to merit condonation of delay of 31 days in filing the appeal.
11. Per-contra Mr. M.J. Quadir, learned counsel appearing for the respondents submits that under the law the appellant was required to give day to day explanation for each days delay which he has failed to provide in his application. That apart in paragraph 11 of the impugned judgment and order, the learned First Appellate Court has also observed that as the appellant was in a position to see his doctor during the period of ailment, therefore, there was nothing preventing him from coming to the Court for the purpose of obtaining the certified copy and presenting the appeal within time.
12. I have considered the submissions made by the learned counsels for the parties. It is true that in default of party in presenting an appeal within the statutory period of time, a valuable right accrues in favour of the other side which cannot be taken away lightly. However, unless the Court is of the view that the appellant had deliberately delayed in filing of the appeal by adopting dilatory tactics, the Court would condone such delay and permit the matter to be decided on merit. It has been held by the Hon''ble Apex Court in a catena of decision that the primary function of the Court is to adjudicate the dispute between the parties on merit and to advance substantial justice. As such, while considering the application for condonation of delay, the Court is required to adopt a liberal, pragmatic and justice oriented approach. When the applicant/appellant has been able to provide just and sufficient explanation accounting for the delay in filing the appeal, the Courts would refrain from adopting a pedantic approach and asking for strict proof in respect thereof.
13. In the case of
"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. 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 for the existence of the institution of Courts. 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 al the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
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''s 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.
14. Further in the case of
15. The materials available on record sufficiently explains the cause of delay in this case. In the instant case, the dispute is between the brothers belonging to the same family over a plot of land which is claimed by one of the parties to be his ancestral land. Delay in question is also of 31 days which has been sufficiently explained. There is nothing on record to show that the appellants/applicants had resorted to dilatory tactics by not filing the appeal on time. In such view of the matter, the learned First Appellate Court was clearly not justified in the eye of law in dismissing the appeal in the facts and circumstances of the case. In such view of the matter, this Court is inclined to hold that the learned First Appellate Court did not exercise the discretionary jurisdiction conferred upon the Court in the matter of condonation of delay bearing in mind the principles of law as enunciated by Hon''ble Supreme Court from time to time. Such being the position and having regard to the fact and circumstances of the case, the impugned judgment and order dated 08.01.2014 is hereby set aside. The delay of 31 days in preferring the appeal stands condoned. The learned First Appellate Court will now decide the Title Appeal No. 45/2012 on merit. The appeal stands allowed to the extent as indicated above. No order as to costs.
