- (1.) THIS revision arises from the order dated 9. 10. 1995 passed by the District Judge, Jaipur City, Jaipur whereby the appeal submitted by the plaintiff petitioner with an application under Section 5 of the Limitation Act has been ordered to be dismissed.
(2.) THE plaintiff petitioner instituted a civil suit for mandatory and perpetual injunction in the court of Additional Munsif and Judicial Magistrate No. 1 Jaipur City, Jaipur stating therein that the plaintiff had purchased a land measuring 2 bigha 5 biswas with four pucca constructed rooms thereon vide a registered sale deed with electricity connection which was installed at the said residential house till 1982, where earlier a factory was running. In the flood of 1982 the factory premises were demolished and therefore the same stopped functioning and the electricity connection also got disconnected since thereafter. On 13. 8. 1991 the plaintiff applied for new electricity connection. A demand note was issued on 14. 10. 1991 to the plaintiff in which in column 9 it was stated that the outstanding dues against the earlier owner of the property regarding the electricity connection with him will have to be paid by the plaintiff. No amount was specifically mentioned in the column, therefore the plaintiff sent a registered letter on 21. 10. 1991 enquiring about the earlier outstanding amount. THE said letter was unanswered. It has been contended in the plaint that the plaintiff was prepared to abide by all other conditions except the condition No. 9. THE defendant cannot legally recover the outstanding amount from the plaintiff and the amount can be realised from the earlier owner Shri Rajeev Joshi from his movable and immovable property. THEre is no provision under the Indian Electricity Act under which the plaintiff can be compelled to pay such amount. It was also pleaded in the plaint that in absence of electricity connection, plaintiff cannot reside in the said house and it was virtually impossible for the plaintiff to stay as the electricity was the basic necessity. THE plaintiff had by making great efforts been able to procure temporary electricity connection for a period of one month. THE plaintiff applied for its extention but the defendant became annoyed with the plaintiff and did not extend the period. A legal notice was also served on the defendants. On account of this the defendants were threatening to disconnect even the temporary electricity connection and it had become imperative to approach the court. It was therefore prayed that the defendants be directed by issuing mandatory injunction to provide to the plaintiff, electricity connection for the purpose of residence within a period of one week and further be directed by issuing a temporary injunction not to disconnect the present temporary connection till the plaintiff paid the regular electricity expenses. This civil suit was also accompanied by an application for issuance of temporary injunction. The defendant contested the suit by denying the allegations contained in the plaint. On 29. 5. 1995, the civil suit instituted by the plaintiff was dismissed in the absence of the plaintiff's counsel and a judgment and decree came to be passed. The plaintiff could not file appeal against the said judgment in time. The plaintiff could only file appeal on 18. 7. 95 with an application under section 5 of the Limitation Act for condonation of delay. The District Judge, Jaipur City vide order dated 9. 10. 1995 rejected the appeal as being time barred. Application under section 5 of the Limitation Act was also dismissed. The order passed by the District Judge has been assailed in this revision petition. I have heard Mr. Rafiq, learned counsel for the petitioner and Mr. A. K. Sharma and Mr. Shailesh Prakash Sharma, learned counsel for the non-petitioner and carefully perused the impugned order. Application under Section 5 of the Limitation Act was supported by an affidavit and certificate issued by the doctor. The learned lower appellate court has dismissed the application under section 5 of the Limitation Act as well as appeal on the ground that no explanation from 13th to 18th has been given in the application. In the application it has been contended that the petitioner had suffered heart disease since 3. 7. 95 to 17. 3. 95 whereas the medical certificate produced in support of the application disease has been shown as gastric trouble. Medical certificate is from 3. 7. 95 to 13. 7. 95 and the appeal has been filed on 18. 7. 1995 i. e. after 5 days and no explanation of these days has been given either in the application or in the memo of appeal. In order to advance substantial justice to the parties, courts should not enter into technicalities. No doubt that there is a difference between heart disease and gastric trouble but ordinarily the litigant is not in a position to understand this difference. In Collector Land Acquisition Anantnag and Anr. vs. Mst. Katiji and Ors. (1), the Apex Court has laid down the following principles to be adopted on the question of condoning of delay : "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 malafides. 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. "
(3.) THE lower appellate court has not properly appreciated that refusing to cond one delay can result in a meritorious matter being thrown out at the very thre- shold 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 o n merits after hearing the parties. 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? 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. I am of the considered view that the lower appellate court has committed illegality in exercise of jurisdiction vested in it in dismissing the application as well as application submitted under section 5 of the Limitation Act. Consequently I allow this revision petition and set aside the impugned order dated 9. 10. 1995 passed by the District Judge, Jaipur City. I remand the case back to the lower appellate court to be decided on merit while allowing the application under section 5 of the Limitation Act submitted by the plaintiff petition- er. The parties are directed to appear before the lower appellate court on 9. 12. 1996. No order as to costs. The observations made hereinabove shall not affect the merits of the case. . ;