JUDGMENT Rajes Kumar, J.
1. The present appeal is being directed against the judgment and order dated 8.9.2000, passed by VIIth Additional District and Sessions Judge, Allahabad, dismissing the application for restoration and refusing to set aside the order dated 15.5.1981, passed in Appeal No. 662 of 1978, Ram Shankar v. Kanhai Lal and Ors., arising out of order dated 24.9.1977 passed by Munsif First, Allahabad in Suit No. 795 of 1955 Kanhai Lal and Ors. v. Sharda Prasad as time barred.
2. The brief facts of the case are that a Suit No. 795 of 1955 was filed by the respondent for eviction of the appellants from the premises in dispute. The suit was decreed vide order dated 24.9.1977 and the appellants were evicted from the premises in dispute. Against the order dated 24.9.1977, an Appeal No. 662 of 1978 was filed. During the pendency of the appeal, several dates were fixed and the records were summoned, but the records could not be received. On 9.4.1979, the appeal was transferred to the Court of VIIIth Additional District Judge. It is contended that an order was passed for reconstruction of the file. The counsel for the appellants attended the Court on 5.7.1980, the case was adjourned for 5.8.1980. On 5.8.1980, the case was kept without date since the record of the Court was not available. However, the order-sheets shows that the case was adjourned to 2.3.1989 and thereafter on several dates. On 17.11,1980, the case was further transferred from the Court of VIIIth Additional District Judge to the Court of VIIth Additional District Judge. Admittedly, no information was given to the appellant about the transfer of the case. It appears that on the receipt of file, the Court of VIIIth Additional District Judge on 22.12.1980 passed an order to send notice to the parties. There is an endorsement on the order-sheet dated 7.2.1981 that no notice were sent to the appellants. On 7.2.1981, the Court again ordered to send notices. It appears that on 16.3.1981, the appellant moved a substitution application in the Court of VIIIth Additional District Judge. The order-sheet shows that an application was filed in the Court of VIIIth Additional District Judge was subsequently sent from the office of VIIIth Additional District Judge to the Court of VIIth Additional District Judge which was acknowledged on 17.3.1981. However, the claim of the appellants are that they were not aware about the transfer of case and, therefore, under the bona fide belief, they filed a substitution application on 16.3.1981 which was also received in the Court of VIIIth Additional District Judge. The appeal was decided ex-parte on 15.5.1981 in the absence of both the parties. Appellant moved restoration application for recalling of the order dated 15.5.1981 on 12.1.1994 along with an application for condonation of delay which is placed on record as Application No. 4C along with an affidavit in support of application which is on record as Document No. 5C. The VIIth Additional District Judge, Allahabad, on 8.9.2000 rejected the application for condonation of delay and also rejected the restoration application being belated and delayed. Being aggrieved by the said order, the present appeal has been filed.
3. I have heard Sri Sidheshwari Prasad learned counsel for the appellant and Sri Hart Nath Tripathi, learned counsel for the respondent.
4. In an affidavit, filed in support of the application for condonation of delay, it was averred in paragraph 9 onwards that on 16/17.2.1994, the decree holder along with the peon of the Court came to the appellant residence and stated to evict the house, otherwise, the house hold articles would be drawn out with the help of police. Thereafter, the appellant met Sri Triloki Nath clerk of counsel Sri Asthana and told about the happening. He met the counsel of lower court. Thereafter, the appellant met Sri S. K. Sinha, advocate and his father Sri V, C. Srivastava who suggested for inspection of the file. On the inspection of the file, it was found that the Appeal No. 662 of 1977 was rejected on 15.5.1981 in absence of both the parties by the VIIth Additional District Judge and both the parties had no knowledge about the said order. By the grace of God and by luck, he was living in the house without any eviction. It has also been alleged that inspite of great effort, the file could not be made available and therefore, on 24.3.1994, the appellants have also filed a complaint to the District Judge and requested for issuance of direction to search out the file. The District Judge had also directed to search out the file. Ultimately on 6.4.1994, the appellants had received reply of question answer, in which, it was been stated that the process of searching out the file is continued. Thereafter, the application was filed. On the aforesaid reasons, the appellants prayed for condonation of delay. In reply to the affidavit filed in support of condonation of delay, an affidavit was filed by the respondent which is Annexure-4 to the affidavit filed in support of the Stay Application. The perusal of affidavit filed shows that the averment made in paragraph 9 onward had simply been denied without giving any reason for denial. The Additional District Judge had rejected the application for condonation of delay on the ground that the appellants had moved substitution application on 16.3.1981, but did--not pursue the application for substitution, moreover, since he had attended the Court on 16.3.1981 and moved substitution application, it is presumed that they have noticed that the appeal was transferred to VIIth Additional District Judge. He further observed that the Order-sheet shows that the appellants were not vigilant in pursuing the appeal. He relied upon the judgment of Hon'ble Apex Court in Capt. Harish Uppal v. Union of India and Ors., ALR 1994 (23) p 574, in which, the Hon'ble Apex Court held that the parties should persue their right and remedies promptly and not sleep over their rights. Learned VIIth Additional District Judge further observed that in the instant case cause for delay as shown by the appellants are neither sufficient nor have any substance. The delay is 13 years long wherein the appellant has just slept over his appeal. He further observed that the appellant have filed affidavit in support of their application, wherein, they have stated that on 5.8.1980, they along with their counsel had attended the Court and on the same day, a case was kept without date, so the appellants according to their affidavit have personal knowledge that on 5.8.1980, the appeal was without date. Since there is no averment in the affidavit that it was due, to wrong advice of counsel that they did not attend the Court after 5.8.1980, they could not take advantage of the ruling for wrong advice of counsel and did not show sufficient cause. The learned Judge accordingly refused to condone the delay and accordingly rejected the restoration application filed beyond time.
5. Having heard learned counsel for the parties. I am of the view that the order of VIIth Additional District Judge, Allahabad, dated 8.9.2000 is not legally correct.
6. In my opinion, the facts prior to the date of order dated 15.5.1981 are not relevant. What has to be seen is when the order dated 15.5.1981 passed by the appellate court came to the knowledge of appellant. There is no dispute that at the time of transfer of the case from the Court of VIIIth Additional District Judge to the Court of VIIIth Additional District Judge, the appellants had not been given any information about such transfer. On the receipt of the file, the VIIth Additional District Judge has also ordered for issue of notice to the appellants and order-sheet shows that such notice was not issued. Therefore, on record, there is no material to show that the appellants were given any information about the transfer of the case from the Court of VIIth Additional District Judge to the Court of VIIth Additional District Judge. This is the also the fact that inspite of summon of record of the court below, the record could not be received. There is no material to deny the averment of appellants that Court had observed that further information would be given on the receipt of record. In any view of the matter, the appeal was decided on 15.5.1981, without hearing of both the parties. Since 1981, respondent has also not taken any steps for execution of decree after dismissal of appeal on 15.5.1981. This also shows that the respondent had also no knowledge about the dismissal of appeal on 15.5.1981. In the affidavit filed along with the application under Section 5 for condonation of delay, it had been averred that on 16.2.1994 when the respondent decree holder came to the appellants, he along with Amin and Peon then the appellants came to know about the dismissal of the appeal. There is no material to the contrary except mere denial. On the facts and circumstances of the case, there is no reason to disbelieve the averment made in the affidavit that the appellants came to know about the dismissal of appeal on 16.2.1994. It is true that the appellants should be more vigilant to know about the proceeding of appeal, but on the facts and circumstances of the case, it could not be said that the appellant was not in bona fide belief, inasmuch as the record could not be received in appellate court and no notice of any kind, was issued by the appellate court fixing date and giving information about the proceeding after the transfer of case.
7. In the case of Collector, Land Acquisition v. Mst. Kati Ji and Ors., AIR 1987 SC 471, Hon'ble Supreme Court held as follows :
"The Legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 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 subserves the ends of justice that being the life-purpose of the existence of the institution of Courts. 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 merit 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 and pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, the 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 mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
(6) It must be graped that the 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.
8. In the case of Vedabai alias Vijayanatabai Baburao Patil v. Shantaram Buburao Patit and Ors., 2001 (3) AWC 2353 (SC) : 125 (2002) ASTC 375, the Apex Court held as follows :
In exercising discretion under Section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the later case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause", the principle of advancing substantial justice is of prime importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under Section 5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression "sufficient cause", should receive liberal construction, in catena of decisions (See State of West Bengal v. Administrator, Howrah Municipality, (1972) 1 SCC 366 and Smt, Sandhya Rani Sarkar v. Smt. Sudha Rani Debi, (1978) 2 SCC 116). The High Court in exercising its jurisdiction under Section 115, C.P.C. failed to correct the jurisdictional error of the appellate court.
9. In the case of Municipal Corporation, Gwalior, v. Ram Charan (D). 2002 (3) AWC 1838 (SC) ; JT 2002 (4) SC 346, second appeal filed in High Court along with an application under Section 5 of Limitation Act, reasons stated for condonation of delay was that the Municipal Corporation had appointed an advocate to appear on its behalf, who failed to appear in the first appellate court when the appeal was heard, on account of some confusion in noting the date of hearing in the Court case diary maintained in the office of the advocate and it was the belated knowledge of the judgment and decree of the appellate court on the part of the advocate, and consequently on the part of the Municipal Corporation, which had caused the delay in filing the appeal. High Court has dismissed the application for condonation of delay. The matter went to the Hon'ble Supreme Court. Hon'ble Supreme Court had held that "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."
10. On the facts and circumstances stated above, I am of the view that there is no reason to doubt that the appellants came to know about the dismissal of appeal on 16.2.1994, when the respondent decree holder along with Amin and Peon of the Court went to his residence and had asked to vacate the premises in dispute. There is no material on record to show that the appellant had knowledge about the ex-parte order dated 15.5.1981 prior to 16.2.1994. Keeping in view of the principle laid down by the Hon'ble Apex Court as referred above delay in filing the restoration application is liable to be condoned.
11. Though, the learned Judge has rejected the restoration application as barred by limitation and normal course is to send back the case for disposal of restoration application on merit because Court has not considered the merit of the restoration application but in view of the fact that matter is quite old and I have already considered that the appellant had no knowledge about the date fixed on 15.5.1981 and the appeal was decide ex-parte in the absence of both the parties, there was sufficient cause for non-appearance and hence, I allow the restoration application.
12. However, the facts and circumstances of the case also show that the appellants were not very vigilant and they should be more careful and should keep themselves watching about the proceedings and dates in appeal in a regular manner which they have not done. In the circumstances, the appellants are liable for costs to be paid to the respondents. Keeping in view of above facts and circumstances, I fix a sum of Rs. 10,000 towards costs payable by the appellants to the respondents which they may pay to the respondents within a period of one month.
13. The suit was filed in 1955 and the appeal was filed in 1977 which was numbered as Appeal No. 662 of 1977. In the circumstances, I direct the appellate authority to decide the Appeal No. 662 of 1977 preferably within a period of three months from the date of presentation of certified copy of the order which the appellant undertakes to file within three weeks. It is made clear that the appellate authority will proceed to decide the appeal only when the appellant will pay the amount of costs to the respondents within the stipulated period. In case, if the costs is not paid within the stipulated period, the present order shall be deemed to have been vacated and the appeal should be deemed to have been dismissed.
14. In the result, the appeal is allowed and the order dated 15.5.1981 is set aside.