- (1.) RAM Janam Singh J. This Second Appeal No. 32 of 1998-99 Pauri Garhwal has been preferred by Raghubir Prasad against the judgment and decree dated 5-6-99 passed by learned Additional Commissioner, Pauri Garhwal Division.
(2.) BRIEFLY stated the facts of the case are that plaintiff- respondent filed a suit on the basis of adverse possession under Sec tion 229-B of the U. P. Z. A. and L. R. Act before the learned trial Court. The original tenure-holder of the land in dis pute was one Makhan Lal but the plaint was filed against one Makhan Dass. The notice too was issued in the name of Mak han Dass but that notice was returned with an endorsement that Selh Makhan Lal does not exist and that his address is also not known. But this endorsement has not been signed by two witnesses of the locality of the village. The plaintiff- respondent thereafter moved an application before the trial Court requesting the Court that he be allowed to get the notice published in a local daily. This application was moved on 29-3-93. This application was allowed on 13-5-93 and the same was published in one 'jayat' paper bearing no date or place from where the paper was being published. The date of appearance was 11-5-93. After this publication the statements of Mahant Govind Dass and Pradhan were recorded on 3- 6-93 and the suit was decreed ex-parte on 2-7-93. The ex-parte decree was passed on the basis of the statement of Mahant Govind Dass and Pradhan and that there is no documentary evidence to prove the ad verse possession on of the plaintiff-respondent. Against this order the defen dant-appellant moved a restoration ap plication before the trial Court on 19-7-97 claiming that Makhan Lal died on 27-6-90 and he has executed a Will-deed in favour of Raghubir Prasad, the present applicant. M/s. Birla International Pvt. Ltd. , the pur chaser was also impleaded as a party on the basis of the sale-deed. The learned trial Court on the application of M/s. Birla International for impleadment passed an order that it will take up the restoration application first and decide the implead ment application thereon. Against this order revision was preferred before the Commissioner which was allowed and M/s. Birla International was impleaded as a party in the suit on 27-2-98. The present appellant came to know about this ex-parte decree on 19-7-97 and on the same day filed a restoration application before the trial Court. According to the appellant Makhan Lal died on 27-6-90 and his where about are not known and no effort was made by the plaintiff-respondent to find out as to who was the original tenure-holder. The learned Additional Commis sioner has dismissed the appeal being time barred on 3-6- 99. Aggrieved by this order this second appeal has been preferred. I have heard the learned Counsel for the parties and have gone through the records carefully. The delay in filing the first appeal before the learned Additional Commis sioner, Pauri Garhwal is about 10 months from the date of knowledge i. e. from 19-7-97 to 21-5-98. The restoration application which was preferred before the learned trial Court was not disposed of hence the Counsel for the present appellant advised him to file the appeal against the ex-parte order before the competent Court. It is evident from the record that the order was not known to the present appellant before 19- 7-97 because there is no paper on record which could prove that the knowledge of the ex-parte decree was there before 19-7-97 to the present appellant. The findings given by the learned first ap pellate Court is very technical and he has not looked into the circumstances of the case and the merits of the case. No Counsel files an affidavit in any case for the party that the advise was given by him to take such and such steps. The observation of the learned Additional Commissioner that the present appellant Raghubir Prasad has not filed an affidavit of the Counsel who advised to move a restora tion application is not found. Though the learned Additional Commissioner has very clearly mentioned in this operative portion of the judgment that the effect of this order dated 3-6-99 will not have any effect on the restoration application pend ing before the trial Court but when the appeal has been dismissed then the order of the learned trial Court merged in the order of the appellate Court. This indi cates that the learned Additional Commis sioner was convinced that the delay in filing the first appeal is not intentional on the part of the present appellant. AIR 1987 SC page 1353 the Hon'ble Supreme Court has very clearly laid down that to condone or not to condone is not the only question. Whether or not to apply the said standard in applying the "sufficient cause" test to all the litigants regardless of their personality in the said context is another. The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subser ves the ends. "refusing to condone the delay can result in a meritorious matter being thrown out at a 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 par ties. " "every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every Court's delay, every second's delay?" "when substantial justice and tech nical considerations arc pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injus tice being done because of a non-deliberate delay. There is no, presumption that delay is occasioned deliberately, or on account of culpable negligence, or on ac count of mala fides. 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 remov ing injustice and is expected to do so. ". AIR 1987 page 222 is also relevant in this context. AIR 1975 page 56 Guhati and ARC 1993 (2) 6 is also relevant in the present context. AIR 1982 Alld. page 23 is very relevant on the point of setting aside ex- pane decree. 1984 AWC (Suppl) page 587 is also relevant in this context. RD 1992 page 114 is also relevant on the point of condonation of delay. The citation given by the learned Counsel for M/s. Birla Inter national 1987 AWC page 1385 (HC); 1992 AWC page 926; 1994 AWC page 1081; 1984 RD page 56 (HC); 1982 AIR SC page 1397, have been seen.
(3.) THE argument of the learned Coun sel for the plaintiff- respondent is that the plaintiff is in possession over the land in dispute for the last 16 years and the land in dispute was rented out to the State Government. Pradhan has also proved his case and on the basis of this decree he has transferred the land to M/s. Birla Interna tional. After hearing the learned Counsel for the parties I am of the view that the point of condonation of delay, the substan tial justice and technical justice are pitted against each other. According to the Hon'ble Supreme Court the cause of sub stantial justice deserves to be preferred. It cannot be presumed that the delay is deliberate. Hon'ble Supreme Court has observed that 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 remov ing injustice and is expected to do so. AIR 1982 SC is on the point of setting aside the ex-parte decree. Impact of Explanation of CPC Order IX Rule 13, the circumstances and the facts of the case proved that the ex-parte decree which was obtained by Mahant Govind Dass does not bear any documentary evidence to this effect that the probation of Mahant Govind Dass is good. The matter has not been inves tigated properly by the learned trial Court as the present appellant Raghubir Prasad could not produce such evidence before the Court in order to enable the Court to evaluate the Will. By giving the oppor tunity to present appellant not mean that Will holds good. This conclusions can be drawn after the matter is properly looked into by the Court concerned. The point whether the original tenure holder Makhan Dass is dead or absconder is also not clear. When legal justice is to be done, a party should be believed to enable the Court to investigate the matter in detail and arrive at right conclusion. AIR 1987 SC observation is that judiciary is repected not on account of its power to legalize injustice on technical but because it is capable or removing injustice and is ecpted to do so.;