- (1.) THE present petition has been filed under Article 227 of the Constitution of India for quashing order dated 13.1.2012 passed by the Principal District Judge, Dhanbad in Misc. Appeal No. 60/2011, whereby, the learned Principal Judge dismissed the appeal on the ground of delay of 101 days in filing the appeal against the order dated 15.12.2010 passed by Sub-Judge-V, Dhanbad in Title Suit No. 13/2010, whereby the learned Sub-Judge, Dhanbad allowed the petition dated 18.9.2010 filed by the plaintiff/respondent and directed the defendant to maintain status quo till disposal of the suit.
(2.) HEARD the parties and perused the order impugned and materials produced on records. From perusal of the record, it appears that the court below has rejected the appeal on the ground of limitation as the delay of 101 day occurred in filing of the said appeal was not justified as well as on the ground that the question involved in appeal has been decided in earlier writ petition being WPC No. 282 of 2011, Copy of the order passed in said WPC is annexed as Annexure-3 to the writ petition. From perusal of the same, it appears that the subject matter of the said petition was confined to the challenge under Order XIV Rule 2 of the Code of Civil Procedure. I have also perused the prayer clause as well as contents of the WPC No 282/2011, which is produced by the learned counsel for the petitioner at the time of hearing. On perusal of the said petition as well as order passed in WPC No. 282/11, it is amply clear that the subject matter of the petition was limited to the extent and confined to application under Order XIV, Rule 2 of the Code of Civil Procedure. Therefore, it appears that the learned court below has not properly considered this aspect while rejecting the appeal filed by the present petitioner.
(3.) IN support of his submission, the learned counsel for the petitioner has referred to and relied upon the judgment reported in (2010) 6 SCC 786 [Improvement Trust, Ludhiana Vs. Ujagar Singh and Ors.] and on perusal of para- 17 and 19 of the said judgment, it appears that the ratio laid down in this judgment is relevant and applicable to the facts of the present case. Paragraphs 17 and 19 of the said judgment read as under; "17. Even though Mr Vijay Hansaria appearing for Respondent 5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds are made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for Respondent 5 and cannot subscribe to the same. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose of it on such technicalities and that too at the threshold. 19. In our opinion, the ends of justice would be met by setting aside the impugned orders and the matter is remitted to the executing court to consider and dispose of the appellant's objections filed under Order 21 Rule 90 CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on such technicalities." Learned counsel for the petitioner has also invited attention of this Court to the petition which was submitted before the appellate court for condoning the delay of 101 days in filing the petition and from perusal of which, it appears that sufficient cause has been made out for condonation of the delay. However, the court has taken technical view and rejected the said application.;