Allowed

Sita Ram v. Ram Niwas and Ors.

Punjab & Haryana HC22 Jul 2009CR/1772/2008

Case brief

AI extract

What is this about?

The Punjab and Haryana High Court set aside orders of lower courts refusing to condone a one-day delay in filing an application for restoration of a suit dismissed in default. The bench relied on the Vedabai case principles, holding that sufficient cause must be liberally construed to advance substantial justice.

What did the court decide?

Impugned orders of the Additional District Judge and trial Court were set aside; applications for condonation of delay and restoration of the suit were allowed.

Sita Ram Vs Ram Niwas and Ors. — Execution and Attachment | Punjab & Haryana HC (2009)

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Civil Revision No.1772 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.1772 of 2008

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Date of Decision:22.07.2009

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Sita Ram son of Mam Chand

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.....Petitioner

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versus

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Ram Niwas and others

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.....Respondents

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CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL.

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Present: Mr.Deepak K.Sharma, Advocate, for the petitioner.

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Mr.Sudhir Mittal, Advocate, for respondent Nos.1 to 9.

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AJAY KUMAR MITTAL, J.(Oral)

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In this revision petition filed under Article 227 of the Constitution of India, the plaintiff-petitioner has challenged the order dated 19.01.2008 passed by the Additional District Judge, Fatehabad, whereby, on appeal, he affirmed the order dated 20.07.2005 passed by the trial Court dismissing the application of the plaintiff-petitioner for restoration of the suit which was dismissed under Order IX Rule 8, Code of Civil Procedure.

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It may be noticed that vide aforesaid impugned orders, the Courts below have declined to condone one day's delay in filing the application for restoration of the suit which was dismissed in default on 15.09.2000, whereas the application for restoration of the suit was filed on 16.10.2000. Besides this, the Courts below had declined to restore the suit

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Civil Revision No.1772 of 2008

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as well which was dismissed in default on 15.09.2000 on the ground that there was no sufficient cause for non-appearance of the plaintiff-petitioner on that date.

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Learned counsel for the petitioner vehemently submitted that the non-appearance of the plaintiff-petitioner on 15.09.2000 was due to the fact that he was seriously ill on the said date and as per the opinion of the doctor, he could die at any time. According to the learned counsel, the said explanation has been rejected by adopting very strict view of the matter only on the ground that neither any medical certificate had been produced nor the doctor who treated the plaintiff was examined. He urged that the approach of the Courts below is contrary to principles enunciated by the Apex Court in Vedabai alias Vaijayantabai Baburao Patil Versus Shantaram Baburao Patil and others, AIR 2001 SC 2582, wherein it has been held that while exercising the powers under Section 5 of the Limitation Act the Court should adopt a pragmatic approach and exercise the discretion on the facts and circumstances of each case keeping in mind that the expression “sufficient cause” should be interpreted liberally while imparting substantial justice.

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On the other hand, learned counsel for the respondents supported the order passed by the Courts below.

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I have heard learned counsel for the parties and have perused the record.

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The Apex Court in Vedabai alias Vaijayantabai Baburao Patil's case (supra) while laying down guiding principles for condonation of delay under Section 5 of the Limitation Act and construing the expression “sufficient cause” held as under:-

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“In exercising discretion under S.5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the

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Civil Revision No.1772 of 2008

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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 latter 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 S.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: (AIR 1972 SC 749) and Smt.Sandhya Rani Sarkar v. Smt.Sudha Rani Debi (1978) 2 SCC 116: (AIR 1978 SC 537). The High Court in exercising its jurisdiction under S.115 C.P.C. failed to correct the jurisdictional error of the appellate Court”.

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Applying the aforesaid to the facts of the present case, the orders passed by the Courts below declining to condone the delay of one day in filing the application for restoration of the suit and also in restoring the suit which was dismissed in default on 15.09.2000 cannot be sustained and it cannot be said that there was no sufficient cause for condoning the delay or that the delay was deliberate or intentional or that the non-

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Civil Revision No.1772 of 2008

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appearance on 15.09.2000 was without any bonafide cause.

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Accordingly, the present revision petition is allowed and the

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orders impugned herein are set aside. Both the applications - for condonation of delay as well as for restoration of the suit - are allowed.

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The parties through their counsel are directed to appear before the trial Court on 14.09.2009. The trial Court shall proceed further in the matter, in accordance with law. As the suit relates to the year 1994, the trial Court shall make sincere efforts to decide the same expeditiously.

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July 22, 2009 seema

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(AJAY KUMAR MITTAL) JUDGE

Sita Ram v. Ram Niwas and Ors.

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Sita Ram v. Ram Niwas and Ors.

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