- (1.) R. K. Mahajan, J. This is a writ peti tion in the nature of ceniorari quashing the orders dated 20-9-1995 as well as the order dated 28-9-1995 (Annexures 7 and 8 to the writ petition) passed by the District Judge, Allahabad and III Additional District Judge, Allahabad. A writ in the nature of mandamus is also sought commanding the respondent No. 2 to consider and decide the first appeal from order No. 904 of 1990, Nirmala Tandon and others v. H. N. Tandon and others filed before him on merits after affording opportunity of hearing to the counsel for the petitioners.
(2.) THIS case has unfortunate an inter esting history. The petitioner is involved in the different orders of the Courts. Al lahabad Civil Court says that it has jurisdic tion to try the suit. The order was again recalled that it has no jurisdiction to try the suit. The suit regarding the immovable property is pending at Sitapur. That order was again recalled that it has no jurisdiction. The another important feature of the case is that the appeal is shuttling in the appellate Court and the High Court. The petitioner filed an appeal in the High Court. The High Court granted ad interim injunction, despite the objection raised by the Stamp Reporter that it is barred by time by 77 days. THIS appeal has been filed in the district Court and the appeal on the point of pecuniary jurisdiction was sent to the High Court. Again U. P. Local Amendment came into force and the petitioner has again followed to take reverse gear and it was sent to the lower appellate Court as the jurisdiction of the lower appellate Court was increased. Again the point of limitation was raised and the appeal has been dismissed as time barred and the application has not been filed at proper time and at different stages of the proceedings. It appears that R. P. Tandon was owner of property in Sitapur. He had two sons - H. N. Tandon and K. P. Tandon. On the death of R. P. Tandon, his sons and wife suc ceeded. Suit No. 42/66 was filed by K. P. Tan don regarding partition of property. It was decreed on 29-8-1968. First Appeal was decided on 19-3- 1975 and the second appeal was decided on 26-11-1982. Final decree was prepared on 30th May, 1975. Smt. Hero Bibi, widow of late Sri R. P. Tandon died in 1979. Suit No. 720 of 1987 was filed by H. N. Tandon before the Civil Judge, Allahabad for cancellation of will by Hero Bibi. The Civil Judge, Al lahabad dismissed the suit on 1-5-1989 (An-nexure 1) on the ground that he has no jurisdiction as immovable property was situated at Sitapur and another suit was pending with respect to the same property in Sitapur. On 26th February, 1990, he recalled the order (Annexure 2) holding that he has jurisdiction to try the suit. Petitioner filed first appeal before the Dis trict Judge, Allahabad. The appeal was ad mitted on 27-3-1990. It was alter on found that since the valuation of the first appeal was Rs. 21, 000, '- the District Judge returned the same to be filed before the proper Court on 18-8-1990. The memo of appeal was returned on 27-8-1990. Thereafter the ap peal was presented before the High Court on 27-8-1990. The appeal was reported time barred 77 days on 27-8-1990. On 1-10-1993, before the High Court, it was pointed out that the report of the. stamp reporter was incorrect and there was no delay in filing of the appeal. At the stage of admission, the interim order was granted. After the appeal was filed, U. P. Civil Laws (Amendment) Act, 1991 came into force raising the valua tion of the appeal before the District Judge to the Rs. 1 lac. The appeal was again sent to the District Judge. It was transferred to the III Additional District Judge. An objection was raised that the appeal was time barred. The appellant filed an application under Section 5 of the Limitation Act. The ap plication under Section 5 of the Limitation Act was dismissed, on the premises that it could not be filed as there was no stage to file the same. This is nut- shell history of the case and the petitioner has come in writ jurisdiction Counter-affidavit has been filed denying the allegations made in the writ petition.
(3.) THE learned counsel for the petitioner has argued ;hat the order of the Court is patently" illegal and unreasonable. It was also submitted that there is jurisdictional error as well as abuse of the process of law. THE learned counsel for the respon dent has argued that the orders passed by the Court below are just and proper orders, and no interference is required. Alter hearing the learned counsel for the parties, I am of the considered view that this writ petition is deserved to be al lowed on the following reasons:- (1) The litigants have no control some time over technicality and procedure of law. They are poor and h: Hipless and arc in the hands of different agency i. e. lawyer as well as long process etc. in disposal of cases and also forum of appeal and change cf forum of appeal and so on. The poor litigants have also no control of the objection raised and not decided promptly as the process is so long in follow its natural course. (2) The procedure of law is only meant to help and aid in the administration of justice and not to thwart the rights of the parties. It appears that the suit is being delayed on one point or others regarding jurisdiction etc. as well as the valuation, and parties' life may end by the decision on these points. (3) It may also he added that the Courts are expected to decide the case as they are not indulge in technicality-act are is no stage of filing ap plication under Section 5 of the Limitation Act. (4) In the case of Collector, Land Acquisi tion Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353, it was held as under- "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 apedcntic approach should be made. Why not every hours delay, every second's delay ? The doctrine must be applied in a rational commonsense 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 none-deliberate delay. " (5) Thus even the Supreme Court has taken a very liberal view in condoning the delay. Con sidering the facts and circumstances of the appel lant cannot be said to be the negligent in pursuing the case at all. The Court below should take the liber-' view in such matters.;