JUDGMENT
J.M. Malik, J.
CM No. 13378/2007
This is an application for condensation of delay of one month in filing the instant petition.
For the reasons stated in the application, the application is allowed and hereby disposed of.
CM(M) No. 1328/2007
1. Counsel for the petitioner heard. He points out that the respondent was yet to appear before the trial court as he was not yet served in this case.
2. The case filed by the petitioner was dismissed in default on 14.02.2006. Petitioner filed an application for restoration of the suit on 16.03.2006. Counsel for the petitioner filed an affidavit. Its relevant portion is reproduced as follows:
It is submitted that earlier process fee could not be filed within time as the file of the counsel for the plaintiff was misplaced while shifting his office from Malviya Nagar to Okhla towards the first week of Jan, 2006. The file could not be traced on 11.02.2006. The counsel for the plaintiff was to make a request on this count on 14.02.2006. But due to unfortunate and untimely death of his uncle on the preceding day of the said date i.e. on 13.02.2006, the counsel for the plaintiff who immediately rushed to Deoria to take part in the last rites and burial of his uncle, which took place on 14.02.2006. The counsel for the plaintiff could not appear and makes a request on that count as well.
3. The trial court dismissed the application on the ground that the counsel for the petitioner/plaintiff should have informed the plaintiff to appear since he was going to Deoria. Again, repeatedly, process fee and RC were not filed. It was also observed that no sufficient ground was shown for restoration of the suit.
4. It is well settled that substantial justice is to be preferred against technical flaws. There is no presumption that delay is always deliberate. The material consideration in such cases should be whether there is any taint of malafides or element of recklessness or ruse. If these are absent, it must be treated as sufficient cause. It must be borne in mind that month of February consists of 28 days. It appears that the application for restoration of the suit was moved within the leeway prescribed by law.
5. I find force in the submissions made by counsel for the petitioner as he has stated in his affidavit that he had to rush to Deoria where his uncle had expired. Since the application was accompanied by the affidavit of the advocate, therefore, it should have been accepted. The un-rebutted affidavit moved by the advocate certainly constitutes sufficient cause. Counsel for the petitioner/plaintiff explains that he could not inform his client due to above said emergency.
6. In Municipal Corporation Gwalior v. Ramcharan (D) by L.Rs. and Ors. , the Apex Court was pleased to observe:
3. The contest before this Court has been more vehement than what it appears to have been before the High Court. It is true that sanctity attaches with the record of Court proceedings. However, in the present case the question is not so much of casting a doubt on the record of proceedings maintained by the Court as is on testing the bona fides of the counsel who filed his own affidavit in support of the application under Section 5 of the Limitation Act. The counsel and the Revenue Officer, who filed their affidavits, do not have any personal interest in the matter. The learned Advocate appearing for the Municipal Corporation was not going to gain anything either by remaining absent at the time of hearing of the first appeal or by assigning a false cause for his non-appearance at the time of hearing. Valuable rights of the parties in an immoveable property are involved. On the totality of the facts and circumstances of the case, we are of the opinion that the High Court ought to have been taken a liberal, and not a rigid and too technical a view of the issue before it and should have condoned the delay in filing the appeal and concentrated on examining whether the appeal raised any substantial question of law worth being heard by the High Court. In our opinion, a sufficient cause for condoning the delay in filing the appeal before the High Court is made out.
7. However, the explanation given by the petitioner’s counsel that he had lost his file and could not file the process fee and RC is not sufficiently explained. He has also failed to explain as to why the process fee and registered A.Ds were not filed earlier as well. In the interests of justice, I restore the suit subject to payment of Rs. 3,000/- as costs which be deposited with Delhi High Court Mediation and Conciliation Centre, UCO Bank Account No. 48852 within a fortnight.
8. The petitioner is directed to appear before the trial court on 24th October, 2007 and file the process fee and registered AD on the same day for which no other date in this context should be granted.
9. Copy of this order be sent to the trial court forthwith.
10. Copy of this order be given dusty.
11. With these directions, petition stands disposed of.
CM No. 13377/2007
In view of the disposal of the petition, no further directions are required to be passed in this application and the application stands disposed of.