ORDER
K.M. Natarajan, J.
1. This revision is directed against the order passed by the Principal Judge, City Civil Court, Madras in C.M.P. No. 2080 of 1987, allowing the petition and condoning the delay in filing the copy application and consequently the delay of 162 days in filing appeal.
2. The facts which are necessary for the disposal of the revision can be briefly stated as follows: The respondent herein filed the suit O.S. No. 5418 of 1984 for declaration and recovery of possession of the land from the revision petitioner. The said suit was dismissed on 31-10-1986. Hence the respondent filed a copy application on 13-11-1986 for the purpose of filing an appeal. Stamp papers wee called on 18-3-1987. Since the stamp papers were not furnished within the time, the copy application was struck off on 28-3-1987. Again the respondent filed another copy application on 28-3-1987 i.e., C.D. No. 8099 of 1987. The copies were made ready on 11-9-1987 and delivered on 14-9-1987. Thereafter the appeal was filed on 25-9-1987. An appeal had been filed against the said judgment dated 31-10-1986, with the petition C.M.P. No. 2080 of 1987 to excuse the delay of 162 days in filing the appeal.
3. In support of the petition C.M.P. No. 2080 of 1987, the clerk of advocate Mr. C. Rajagopalan (counsel for the plaintiff the respondent herein) would state that one of the junior counsel Mr. N. Ethiraj was entrusted with the work of obtaining certified copies of judgment and decree in the lower court. The copy application was filed in time. But, in the meantime, Mr. Ethiraj left the office. The stamp papers were called for and due to non-compliance, the copy application was struck off. There was delay in filing the second copy application. The delay is neither wanton nor wilful. Mr. C. Rajagopalan counsel appearing for the plaintiff himself filed an additional affidavit. Therein he would state that his junior counsel Mr. Ethiraj, who was entrusted with the said work, submitted the copy application on 13-11-1986 after a lapse of 12 days’ delay from the date of judgement. Stamp papers were called for on 18.3.1987, and due to non-compliance, the copy application was struck off. In the meantime. Mr. Ethiraj has left his office. The non-compliance was brought to his notice on 28-4-1987, and immediately thereafter he filed a fresh copy application on the same day. It is further averred that the copies were ready on 21-8-1987, and were received on 24-8-1987. The appeal was filed on 25-9-1987. According to him, the delay in filing the appeal is neither wanton nor willful.
4. The learned Principal Judge for the reasons stated in his order accepted the contention of the respondent and allowed the application. Aggrieved by the same, this revision is filed.
5. The learned Counsel for the revision petitioner, Mr. Viswanatha Rao, mainly submitted that there is absolutely no explanation for not filing an application to restore the copy application which was struck off, that in the circumstances as far as the second copy application is concerned, it is filed after the period of limitation, that the time cannot be computed by taking into consideration the earlier copy application and that in any event, there is no acceptable reason for each day’s delay. Further, the vested right accrued to the revision petitioner would be affected by the condonation of the delay, as the revision petitioner has put up construction in the mean time.
6. After hearing the arguments of the learned Counsel appearing for both sides, I find that the respondent herein filed the suit for declaration and recovery of possession of immovable property which is a vacant land. Admittedly, the first copy application was filed within time, that is within 12 days after the judgment was pronounced. It is stated by the learned Counsel appearing for the respondent and also by his clerk in their affidavits filed before the lower court, that the matter was entrusted with one junior counsel Mr. Ethiraj, and that since he left the office, the calling for stamp papers and the striking of the copy application were not known to them. It is further stated that only on 28-4-1987 they came to know of the same and thereafter they filed the second copy application. I do not find any reason to reject this version as it is the statement made by a responsible counsel of the Bar. No doubt, the respondent should have filed a petition to restore the first copy application immediately and instead of doing so, she has filed a second copy application on the same day. Afterwards the respondent furnished stamp papers and received the copies on 14-9-1987, and within 11 days thereafter the appeal was prepared and filed before court. It is submitted by the learned Counsel for the respondents that by filing a petition for restoration of the earlier copy application and obtaining orders thereon, would have taken a longer time, and that in order to file an appeal and obtain necessary orders, the respondent was advised to file a second copy application that accordingly he filed a second copy application and got copies of decree and judgment and that the said advice cannot be said to be mala fide and on any ground it cannot be said that the application is to be dismissed. I find much force in the contention of the learned Counsel for the respondent. The learned Counsel for the respondent drew my attention to the decision of the Supreme Court in Collector, Land Acquisition v. Katiji A.I.R. 1987 S.C. 1393 : (1987)1 Lab. L.J. 500 : 100 L.W.678], where their Lordships considered the scope of Section 5 of the Limitation Act, and also the explanation offered in respect of each days’ delay and observed as follows
The Legislature has conferred the power to condone delay bye enacting Section 3 of the Indian Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression ‘sufficient cause’ employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserved the ends of justice-that being the life-purpose for the existence of the institution of court. It is common knowledge that the Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all other courts in the hierarchy. And such a liberal approach is adopted on principles as it is realized that-
1. Ordinarily a litigant does not stand to benefit by lodging on 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 pedantic approach should be made. Why 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 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 mala fides. A litigant does not stand to benefit by restoring 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 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
The learned Counsel for the respondent drew the attention of this Court for the proposition that the bona fide mistake on the part of the counsel can also be considered to be a valid ground for condoning the delay, relying on the decisions in Shankuntala (alias) Shakun v. Gobind Prasad 1985 (2) All India Hindu Law Reporter, Volume 12, 1985(2)91 and Messrs Concord of India Insurance Co. Ltd., v. Smt. Nirmala Devi and Ors., [1979 S.C.C.(Crl.)996]. On the other hand, the learned Counsel for the revision petitioner relied on the decisions in Premnath Motor(P) Ltd., v. Bhadur Ghani A.I.R. 1981 Del.215, and Bhaktipada v. R.D.O. Kalna , for the proposition that for the copy application filed after the expiry of the period of limitation, the benefit of Section 2(2) of the Limitation Act, cannot be attracted. In the instant case, the lower court has taken into consideration the entire facts which took place from the date of the judgment till the date of filing of the appeal and the court has not deducted any particular period in computing the period of limitation. The whole question is whether the delay in filing the appeal is to be condoned irrespective of the filing of the first and second copy applications in the circumstances of the case. Hence, these decisions are not applicable to the facts of this case. Applying the ratio laid down in Collector, Land Acquisition v. Katiji 100 . I feel that the delay in this case can be condoned but it should be on terms even though the delay is sought to be explained by the affidavit of the counsel and his clerk it cannot be said that the said explanation can be accepted in toto. Accordingly, the revision is ordered by modifying the order of the court below to the effect that C.M.P. No. 2080 of 1987 is allowed on condition of the respondent herein paying Rs. 250 to the petitioner herein within a week from today, failing which the said petition shall stand dismissed. On such payment, the court below is directed to register the appeal and dispose of the same as expeditiously as possible, in any event within three months thereafter.