VINOD K.SHARMA, J. - (1.) THIS revision petition is directed against the order dated 16.09.1991 passed by the learned District Judge, Amritsar dismissing an application moved by the petitioner under Section 5 of the Limitation Act for condoning the delay in filing the appeal.
(2.) THE case set up by the petitioner was that the judgment and decree appealed against was passed on 31st October, 1988 and the petitioner applied for a certified copy immediately, thereafter i.e, on 2nd November, 1988. The copy was prepared on 8th December, 1988. However, the petitioner could not file the appeal within the stipulated period due to the prevailing circumstances in the State at that particular time especially in view of the threat of life given to the petitioner. The petitioners set up a positive case that due to the threat of terrorists they could not move to Amritsar, to file an appeal and this was on account of fear in the mind of the petitioners that the appeal could not be filed within the prescribed period of limitation. The plea raised by the petitioners has been rejected by the learned District Judge by observing that as the petitioners were not witnesses in the prosecution of murder of the then Prime Minister Smt. Indira Gandhi, therefore, it could not be believed that they were under any threat. The learned District Judge did not take into consideration the prevailing circumstances in the year, 1988.
(3.) THE learned counsel for the petitioners contends that the order passed by the learned District Judge cannot be sustained in view of the law laid down by the Hon'ble Supreme Court in the case of M.K. Prasad v. P. Arumugam, 2001(4) RCR(Civil) 87 : 2001(2) PLJ 315, wherein the Hon'ble Supreme Court was pleased to hold as under :- "7. In any case in which a decree is passed ex parte, the defendant can apply to the Court by which the decree was passed for an order to set it aside and if he satisfied the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the Court regarding the existence of circumstances which prevented him from approaching the Court within the limitation prescribed by the Statute. 8. In construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the Section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal and others v. Rewa Coalfields Ltd. AIR 1962 SC 361 held : Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor, when the appellant satisfied the Court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period" ? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal and the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree- holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree- holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, (ILR 3 Mad 269)". "Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. 9. Again in the State of West Bengal v. The Administrator, Howrah Municipality and others, (1972) 1 SCC 366, and G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore, 1988(1) RRR 555 : (1988) 2 SCC 142, this Court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy, 1999(2) RCR(Civil) 578 : 1998(7) SCC 123 : 1998 (2) PLJ 543 this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay. However, in such a case, the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly." The reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Vedabai @ Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil, 2001(3) RCR(Civil) 831 : 2001(2) PLJ 373, wherein the Hon'ble Supreme Court has been pleased to lay down that sufficient cause should receive liberal construction and the court should adopt a pragmatic approach and distinction should be made between a case where delay is inordinate and a case where delay is of a few days. It is only in the case of inordinate delay that prejudice to other party would be a relevant factor so as to call for a more cautious approach. But in case of delay of a few days, the prejudice to other side does not arise and, therefore, there should be more liberal approach.;