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Allahabad High Court
Hukum Singh vs Ashok Kumar on 28 January, 2010
Court No.7

WRIT -C No. 71305 of 2009

Petitioner: Hukum Singh
Respondent: Ashok Kumar
Petitioner Counsel : Jagdev Singh


Hon'ble Ran Vijai Singh,J.

This writ petition has been filed for issuing a writ of certiorari quashing the
impugned orders dated 16.7.2009 and 01.11.2008 passed by Addl. District Judge,
Court No.7, Bijnor in Civil Revision No. 156 of 2008 Hukum Singh vs Ashok Kumar
and Original Suit No.
218 of 2001 Hukum Singh vs Ashok Kumar passed by Civil
Judge (S.D.) 1st, Bijnor.

The facts giving rise to this case are that the petitioner-plaintiff has filed
original suit no. 218 of 2001 for cancellation of sale deed. The aforesaid suit was
decreed ex-parte on 24.1.2003 by the 1st Additional Civil Judge (S.D.) Bijnor. For
settling aside the exparte decree, an application was filed by the respondent on
06.12.2004 under Order IX, Rule 13 of the Code of Civil Procedure along with an
application under Section 5 of Indian Limitation Act for condoning the delay in filing
the application for setting aside exparte decree. The Additional Civil Judge after
hearing the counsels for the parties has condoned the delay in filing the application
for settling aside the exparte decree vide order dated 01.11.2008.

Aggrieved by that order petitioner has filed Civil Revision No. 156 of 2008, the
said revision has also been dismissed, holding that the court below has not
committed any error of law in allowing the application for condonation of delay.

Sri Jagdev Singh, learned counsel for the petitioner while assailing the
impugned orders has invited attention of the court towards the observation made by
the 1st Additional Civil Judge while passing the exparte decree where it has been
observed by the learned judge that the service of notice was sufficient. In his
submissions once it was held that service of notice was sufficient then it was not
open to the learned judge to dismiss the revision and on this fact Revision ought to
have been allowed and Section 5 application ought to have been rejected.

I have heard learned counsel for the petitioner and gone through the
impugned judgments.

Both the courts below have recorded that there was sufficient reason for not
filing the written statement, on this count,the court below has condoned the delay in
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the interest of justice, on these findings even if there is some substance in the
submissions of the learned counsel for the petitioner with regard to the sufficient
knowledge of the case, I refuse to interfere with the impugned orders as the matter
relating to condonation of delay is a positive exercise of discretion of a court or
Tribunal and once the discretion has been exercised in a positive manner in favour of
the petitioner and delay has been condoned,the Higher Court should not interfere
with these type of orders.

This view has been taken by the Apex Court in the case of State of Bihar
and others vs Kameshwar Prasad Singh and others
reported in JT 2000 (5)

389. The Apex Court, after considering the various earlier decisions on the matter of
condonation of delay observed:

“Para 12……” The expression ‘sufficient cause’ should, therefore, be
considered with pragmatism in justice-oriented process approach rather
than the technical detention of sufficient case for explaining every day’s
delay. The factors which are peculiar to and characteristic of the
functioning of pragmatic approach in justice-oriented process. The
court should decide the matters on merits unless the case is hopelessly
without merit. No separate standards to determine the cause laid by
the State vis-a-vis private litigant could be laid to prove strict standards
of sufficient cause.”

“Para 13……..” It is axiomatic that condonation of delay is a matter of
discretion of the court. Section 5 of the Limitation Act does not say that
such discretion can be exercised only if the delay is within a certain
limit. Length of delay is no matter, acceptability of the explanation is
the only criterion. Sometimes delay of the shortest range may be
uncondonable due to want of acceptable explanation whereas in certain
other cases, delay of a very long range can be condoned as the
explanation thereof is satisfactory. Once the court accepts the
explanation as sufficient, it is the result of positive exercise
of discretion and normally the superior court should not
disturb such finding, much less in revisional jurisdiction,
unless the exercise of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is a different matter
when the first court refuses to condone the delay. In such
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cases, the superior court would be free to consider the
cause shown for the delay afresh and it is open to such
superior court to come to its own finding even
untrammelled by the conclusion of the lower court.”

In view of that I do not find any good ground to interfere with the impugned
orders. The writ petition lacks merit and it is hereby dismissed.
Dt.28.1.2010
F.H./PKB


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