RAN VIJAI SINGH,J - (1.) THIS writ petition has been filed against the judgment and order dated 4.7.2009 passed by learned Additional District Judge, Court No. 2 Agra in Civil Revision No. 27 of 2008, Sri Rajpat Singh and others Vs. Sri Veer Singh.
(2.) SRI Ramendra Asthana, learned counsel for the petitioners while assailing the impugned order has submitted that the impugned order is totally illegal as the learned judge while allowing the Revision, on the one hand has observed that there is no sufficient explanation for condonation of delay and on the other hand has condoned the delay and allowed the Revision and set aside the order dated 30.11.2007 by which the defendant/respondents' recall application was rejected as barred by time. I have heard learned counsel for the petitioners. The facts giving rise to this case are that the petitioners/plaintiffs have filed suit seeking permanent injunction. This suit was decreed exparte on 25.9.2004. Thereafter the defendant/respondent has filed an application under Order 9 Rule 13 of the Code of Civil Procedure stating the reason for non appearance before the Court. This application was rejected on 20.5.2009. For recall of the said order an application was filed in April 2006 along with an application under Section 5 of the Indian Limitation Act. The said application was rejected by the trial court on 30th November, 2007 on the ground that the delay has not been properly explained. Against that, the defendant/respondent has filed Revision which has been allowed by the impugned order. Sri Ramendra Asthana, learned counsel for the petitioner has submitted that the trial court has rejected the application for condonation of delay on the cogent reasons and the revisional court has found that there was no proper explanation for condonation of delay even then condoned the delay, therefore, the court erred in law in allowing the Revision and condoning the delay in filing the application for setting aside the exparte decree.
(3.) The law relating to the delay condonation has been dealt with by the Apex Court in numerous cases. The Apex Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. ( JT 1987 (1) SC 537 = 1987 (2) SCR 387) has given following guidelines while dealing with the delay condonation application :- 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." 6. Again the Apex Court in the case of State of Bihar and others Vs. Kameshwar Singh and others reported in JT 2000 (5) 389 after considering various cases of the Apex Court on condonation of delay application has held : Para 12............ " The expression 'sufficient cause' should, therefore, be considered with pragmatism in justiceoriented process approach rather than the technical detention of sufficient case for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice -oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause". Para 13............. " It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter,acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court". ;