AO/211/2015 of Jaipal Singh Vs Shiv Shankar

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No.211 of 2015

Jaipal Singh

Shri Shiv Shankar

… Appellant

… Respondent

Mr. Rajat Mittal, Advocate present for the appellant. Mr. Neeraj Garg, Advocate present for the respondent.

U. C. Dhyani, J. (Oral)

1.Present Appeal from Order (A.O.) has been filed by the plaintiff-appellant being aggrieved against the order dated 24.02.2015 passed by the Additional District Judge II, Rishikesh, Dehradun in Misc. Case no.31 of 2013, whereby the application filed by the plaintiff under Order 9 Rule 9 C.P.C. read with Section 5 of the Limitation Act was rejected.

2.Plaintiff’s Misc. Suit no.31/2013 was dismissed in his absence on 25.04.2013. He moved restoration application under Order 9 Rule 9 C.P.C. read with Section 5 of the Limitation Act ,which was dismissed by the impugned order. Aggrieved against the same, present A.O. has been preferred by the plaintiff-appellant.

3.The order of dismissal was passed on 25.04.2013 and the application under Order 9 Rule 9 CPC read with Section 5 of the Limitation Act was moved on 24.07.2013. In this way, delay of about 89 days was caused by the plaintiff in moving the restoration application alongwith delay condonation application. The reason attributed for the default in appearance before the trail court was that the plaintiff met with an accident, wherein he

sustained serious injuries and was admitted in the hospital at Delhi.

4.In judgment rendered by Hon’ble Supreme Court in Balwant Singh (dead) vs. Jagdish Singh and others, (2010) 8 SCC 685, the following was observed :

“…………….However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows ‘sufficient cause’ for not preferring the application within the prescribed time.

…………………”

5.Hon’ble Supreme Court in G. Ramagowda vs. Special Land Acquisition Officer, AIR 1988 SC 897 and Shakuntala Devi Jain vs. Kuntal Kumari, AIR 1869 SC 575 has observed that the expression ‘sufficient cause’ in Section 5 must receive liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. It has been held by Hon’ble Supreme Court in State (NCT of Delhi) vs. Ahmed Jaan, 2008 (10) JT 179 that the expression ‘sufficient cause’ should be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay.

6.The expression ‘sufficient cause’ should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party. Whether explanation furnished would constitute ‘sufficient cause’ or not will be dependant upon facts of each case. There cannot be straitjacket formula for accepting or rejecting

explanation furnished for the delay caused in taking steps. However, courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed, valuable right has accrued to the other party which should not lightly be defeated by condoning delay in routine like manner. However by taking pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high, causing enormous loss and irreparable injury to the party against whom the lis terminates and defeating valuable right of such party to have the decision on merits. The courts should strike balance between the resultant effect of the order it was going to pass upon the parties either way.

7.After hearing learned counsel for the parties and having gone through the impugned order, this Court is of the opinion that the sufficient cause has been shown by the plaintiff for his absence on the day when his suit was dismissed in default.

8.To sum up, considering the entire facts of the case, this Court is of the view that sufficient cause has been shown by the plaintiff as to why he could not appear before the trial court when the suit was dismissed in his absence. Application under Section 5 of the Limitation Act ought to have been allowed by the trial court. The same is accordingly allowed and, as consequence thereof, the application under Order 9 Rule 9 CPC is also allowed. The Appeal from Order (A.O.) therefore succeeds.

Impugned order is set aside. The suit is restored to its original number.

9.Let certified copy of this order be sent to the trial court for proceeding with the suit according to law.

(U. C. Dhyani, J.)

Dated 02[nd] September, 2015 Rawat