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 2 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 3 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