ORDER
J.P. Singh, J.
CM No.14998/2004 (delay) in RSA No. 236/2004
1. This order will dispose of an application under Section 5 of the Limitation Act for condensation of delay of 52 days in filing the Regular Second Appeal against the judgment and decree dated 8.4.2004 Notice has already been issued in the main appeal by my learned predecessor.
2. I have heard Mr. S.P. Jha, Advocate learned Counsel for the applicant and Mr. RLS Chaudhary Advocate learned Counsel for the respondents.
3. It is submitted by the learned Counsel for the applicant-appellant that the applicant received certified copy of the judgment dated 8.4.2004 on 16.4.2004 The applicant approached her learned Counsel for preparing the appeal but file was not traceable in the office of the learned Counsel. During the month of June the courts remained closed and the staff of the Advocate was also not available therefore the applicant was told to come on 4th July, but the file could be traced only in the last week of August, 2004 and the present counsel took about 12-14 days to prepare the appeal. This caused a delay of 52 days. The application is supported with the affidavit of the applicant.
4. In reply preliminary objections have been raised stating that affidavit of the earlier counsel was not filed. The names and addresses of the LRs of late Ved Parkash Gupta were not written in the memorandum of appeal despite the fact that the same were written in the judgment under appeal. The copy of the application given to the respondents does not mention the number of days of delay. During arguments it was shown that the number of days of delay were mentioned only in the prayer clause in the copy supplied to the respondents. However in the original application the number of days of delay were written in hand in the application as well as in the prayer.
5. Learned Counsel for the applicant has mainly argued that a party should not suffer because of lapse on the part of clerk of an Advocate, in tracing the file. As against this learned Counsel for the respondents has reiterated the preliminary objections and has submitted that the applicant-appellant is trying to mislead the court and wants to grab the property of the deceased. Since only notice has been issued on the appeal, I would prefer not to go into the merits of the suit or the impugned judgments and the decrees.
6. Learned Counsel for the applicant has cited the judgment titled Collector of Land Acquisition v. Katiji wherein the Supreme Court has held as under:
…It is common knowledge that this 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 the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
1. Ordinarily a litigant does not stand to benefit by lodging an 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 a pedantic approach should be made. Why not 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 the 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 malafides. A litigant does not stand to benefit by resorting 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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
7. The second judgment cited by learned Counsel for the applicant is titled Kaptan and Ors. v. Ram Chander . In this case the first appeal was dismissed by the learned Additional District Judge being barred by time. The High Court following the judgment in Collector of Land Acquisition v. Katiji (supra) held that there was nothing to indicate that delay in filing the appeal could be motivated by malafide.
8. As against this learned Counsel for the respondents has cited the following judgments:
(i) Govt. of NCT of Delhi v. Shakuntala Gupta (Deceased) by LRs reported in 125 (2005) DLT 63 (SB). In this case there was a delay of 5.1/2 months for filing objections under Section 34 of the Arbitration Act. The petition was returned for removing office objections. Then the file was lost by the clerk of the counsel. Later the petition was refiled after removing objections. The application was dismissed on the ground that no details were given as to when it was lost and when it was located and when the objections were removed. In the case before this Court the delay is of about 52-56 days and in between there were summer vacations in the courts, when advocates may also close their offices.
(ii) DDA v. Associate Builders (DB). This was a case of departmental delays in filing appeal. The delay was of 538 days. The main ground was that the correct number of the suit was not available. This was not a plausible explanation and the delay was also for a very long period.
(iii) Haro Singh v. Ajay Kumar Chawla and Ors. . It was a case of incorrect advice by the learned Counsel. It was alleged that an appeal was filed though a civil revision lay and the period spent in that wrong filing was sought to be adjusted in condoning the delay. The Single Bench opined that no complaint had been lodged against the advocate who gave wrong advice. In the case before this Court it is not a case of giving wrong advice but it was non availability of the file, may be due to the closure of the courts and the office of the advocate.
9. Needless to say that the facts and circumstances of each case vary. Considering all the facts and circumstances I am inclined to follow the law laid down by the Supreme Court [Collector of Land Acquisition v. Katiji (supra)]. I therefore, allow the application subject to cost of Rs. 5,000/- (Rupees Five Thousand) in favor of the respondents.
10. Nothing said herein will tantamount to expression of opinion on the merits of the main matter.
RSA No.236/2004
Re-list before the Regular Bench as per Roster subject to the orders of Hon’ble the Chief Justice on 6th February, 2007.