Sudhir Agarwal, J. - (1.) HEARD learned counsel for the applicants -appellants and perused the record.
(2.) THIS appeal has been filed with a delay of one year and 123 days. The only vague and unsubstantiated explanation given by plaintiffs -appellants -applicants contained in paras 4 and 5 of the affidavit accompanying with delay condonation application filed under Section 5 of Indian Limitation Act, read as under: "4. That the deponent hand over the papers and certified copy of the judgment to the counsel Late Ashraf Ali, Advocate, the counsel who has been engaged by the deponent, has been expired on 10.11.2014, then he traced out the matter of Second Appeal which was not found and the other persons told him that his wife and children have gone anywhere. In such a situation, the deponent returned at this home district Kanpur Dehat and approached the counsel for obtaining certified copy of the said judgment and decree for filing the present appeal. After that the counsel Shiv Singh Parmar, Advocate hand over the copy of the said judgment and decree to the deponent then the deponent engaged the present counsel J.P. Singh, Advocate and requested him to file the aforesaid Second Appeal without causing delay. 5. That the deponent rushed at Allahabad on 02.12.2014 and hand over the papers and judgments including decree to the counsel for filing the aforesaid appeal. Therefore the aforesaid appeal is being filed by the deponent through his counsel without causing delay. These circumstances were beyond control of the deponent. If there is a delay the same may be condoned and the appeal aforesaid be decided on merits, otherwise the deponent shall suffer irreparable loss." The averments are apparently vague and do not explain as to when documents allegedly were handed over to Sri Ashraf Ali, where and in what circumstances; and, for almost one and half years why the appellants -applicants did not enquire from him about the fate of appeal. In my view, there is virtually no explanation as to why matter was not taken with due earnest and reasonable expediency.
(3.) THE expression "sufficient cause" in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to parties, seeking condonation of delay. In Collector, Land Acquisition v. Katiji, : 1987(2) SCC 107, the Court said, that, when substantial justice and technical considerations are taken 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. The Court further said that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.;