Judgment:
R.M. Lodha, J.
1. Rule, Returnable forthwith. Mr. Mulla waives service for the respondent.
2. This Civil Revision Application is directed against the order dated 28.6.96 passed by the Additional District Judge, Malegaon, refusing to condone the delay in preferring appeal against the decree dated 20.7.1994 passed by the Civil Judge, Junior Division, Malegaon in Regular Civil Suit No. 38/91.
3. In suit for recovery of possession of Room in city survey No. 808 Navapura, Malegaon and for mesne profits an application was filed by the respondents herein (for short, original plaintiffs) against the present petitioner (for short original defendant) in the Court of Civil Judge Junior Division, Malegaon on 25.1.1991. The original defendant was served in the said suit and he appeared before the trial Court on 21.7.1991. Admittedly, no written statement was filed by the original defendant and ultimately on 28.7.1991 ex-parte decree came to be passed against the original defendant. It is common ground that the original plaintiffs initiated execution of the said exparte decree and notice to that effect was received by the original defendant on 21.11.1994. The original defendant preferred appeal on 1.12.1994 and an application for condonation of delay was also made. In the application for condonation of delay it was slated that it because of the mistake of the lawyer that the written statement could not be filed and his Advocate did not inform him about the dates of hearing of the suit. According to the original defendant, he came to know of passing of the exparte decree against him when he received the notice on 21.11.1994 and immediately thereafter he contacted his Advocate and filed appeal on 1.12.1994. This application for condonation of delay was contested by the original plaintiffs and they denied that a case for condonation of delay was made out. According to the reply filed by the original plaintiffs, the original defendant was careless and negligent in his conduct and, therefore, was not entitled for any condonation of delay.
4. The Additional District Judge, Malegaon, after hearing the learned Counsel for the parties by his order dated 2.2.1996 refused to condone to delay and rejected the application under Section 5 of the Limitation Act giving rise to the present revision application.
5. The reasons stated by the Additional District Judge in his order show that the application filed by the original defendant came to be rejected mainly on the ground that the original defendant was negligent throughout for a period of three years in contesting the suit which remained unexplained and, therefore, he was not entitled to any indulgence or latitude by the Court for condonation of delay. I am afraid the reasons stated by the Appeal Court are besides the point and not at all relevant for considering an application for condonation of delay in filing the appeal against the judgment and decree dated 28.7.1994 passed by the Civil Judge, Junior Division, Malegaon. The Appeal Court mixed up the issues and did not properly apply its mind that it was not considering an application for setting aside the exparte decree and, therefore, whether the original defendant was negligent in defending the suit was not at all relevant circumstance for consideration of an application for condonation of delay in preferring the appeal against the judgment and decree. The only relevant circumstance which was required to be seen by the Appeal Court was whether from the date of the passing of the decree i.e. 28/7/1994 whether the original defendant was prevented by sufficient cause in filing the appeal in time and not facts interior thereto.
6. Admittedly, the exparte decree came to be passed against the original defendant on 28.7.1994 and he received the notice of execution of that decree on 21.11.1994 and filed the appeal immediately thereafter on 1. 12.1994. There is no material placed by the original plaintiff before the Appeal Court to show that the defendant was in knowledge of the decree on 28.7.1994 or immediately thereafter and prior to 21.12.1994. In this fact situation, when the appeal was immediately filed on receipt of the notice by the original defendant on 1.12.1994, it cannot be said that the original defendant has not been able to show sufficient cause.
7. In Collector Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. AIR 1987 SC 1352 the Apex Court was considering the question about condonation of delay with reference to Section 5 of the Limitation Act and the statement in applying the 'sufficient cause' and the Apex Court thus held:-
1. Ordinarily 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 a 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 mala fides. 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.
8. In the aforesaid, Legal position laid down by the Supreme Court. I am satisfied that the impugned order passed by the Additional District Judge suffers from serious error taking into consideration extraneous facts relating to conduct of the original defendant prior to the passing of the decree and non-application of mind on the relevant consideration.
9. The impugned order therefore, cannot be allowed to stand and has to be set aside.
10. Accordingly, the order dated 22.8.1996 passed by the Additional District Judge, Malegaon, is set aside. The application under Section 5 of the Limitation Act filed by the petitioner is allowed and the Appeal Court is directed to hear and decide the appeal on merits. Needless to emphasise that the question whether the trial Court was justified in passing the exparte decree would be decided independently by the appeal court on its own merits uninfluenced by this order since the present order is only concerned on the question whether the original defendant was prevented by sufficient cause in filing the appeal in time.
11. Rule is made absolute in aforesaid terms. No costs.