The Supreme Court has said that when a court exercises its discretion in either condoning or refusing to condone delay in initiating a proceeding, it should be to further the ends of justice.
“The discretion of this court under Article 136 of the constitution is meant to further the ends of the justice and this court has been using its discretion in appropriate cases when it is satisfied the exercise of jurisdiction by the high court or other tribunals has not been on sound judicial principles,” said the apex court bench of Justice A.K. Ganguly and Justice Gyan Sudha Misra in a recent judgment.
Justice Ganguly said that it was well settled that judicial discretion shall always be exercised “according to the rules of reason and justice and not according to private opinion”.
The court said this while setting aside a Punjab and Haryana High Court order of Dec 1, 2008, whereby it declined to interfere with July 27, 2007, order of Ambala district judge in a property dispute.
The Ambala district judge dismissed an application by three sisters seeking the condoning of the delay of 63 days in filling an appeal challenging the trial court order of Dec 1, 2006, dismissing a suit by three sisters seeking their share in their ancestral property that was in the possession of their brother.
Setting aside the high court order, the apex court directed the restoration of the appeal and its expeditious hearing.
“The high court should also have considered that it has been settled by a catena of cases that, unless the delay is gross, an explanation for the same should be liberally construed.”
It appears that the high court has not been able to consider all these relevant facts in their correct perspective before passing the impugned order.
It was clear that of all the three sisters, who were the appellants, one of them was pursuing the case and she fell sick. Therefore, she was not in a position to pursue the legal remedy with due diligence as a result of which the appeal was filed with a delay of 63 days, the court said.
“The delay of 63 days is not a delay for a long period and there has been some explanation for the delay,” the judgment said.
It said that “the high court should have, before passing the impugned judgment, considered the explanation for the delay along with the facts of the case, the position of the parties, the nature of the litigation and the period of delay”.