- (1.) AFTER hearing the learned counsel for the parties I am of the view that the approach of the Additional District Judge is unsustainable. The delay in filing the appeal was of 28 days. It was explained before the Additional District Judge that the Government pleader received the copy of the judgment and decree on 6. 11. 1990 and he furnished his comments and sent the same to the Legal Remembrancer and Secretary to Government of Haryana on 12. 11. 1990 i. e. within five days. The Legal Remembrancer conveyed his advice to the Joint Secretary to Government Rehabilitation Department, Haryana, Chandigarh on 30. 11. 1990, who being not satisfied sent back the reference again to the Legal Remembrancer on 12. 12. 1990. The Legal Remembrancer then issued instructions to the District Attorney, Gurgaon, for filing the appeal on 19. 12. 1990, i. e. within one week's time. The instructions by the District Attorney, Gurgaon, were received for filing the appeal on 28. 12. 1990 and the appeal was actually filed on 4. 1. 1991, i. e. within six days. The Lower Appellate Court seems to think that each days delay should have been explained. The Additional District Judge, referred to certain case law which no longer holds the water in view of the dictum of the law laid down in case Collector Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. ,1 A. I. R. 1987 S. C. 1353. The Hon'ble Supreme Court in Collector Land Acquisition Case (supra), laid down the following principles : "1. Ordinarily a litigant does not stand to benefit by lodging an appeallate. 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 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. "
(2.) IN view of the dictum of law laid down by the Hon'ble Apex Court, I am satisfied that there was sufficient cause in preferring the appeal late. The delay was satisfactorily explained. This Court, is completely satisfied with the explanatioifcfurnished by the State appellant.
(3.) FOR the reasons recorded above, the appeal is allowed. The judgment and decree of the Lower appellate Court is set aside at the stage of interim hearing. The Lower Appellate Court is directed to decide the appeal on merits within six months from today.;