Lundu Roudia Vs. Dusman Roudia - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 3 of 1992 eight days beyond the period of limitation- by the impugned order the appellate court dismissed the petitioner's application for condonation of delay in presenting the appeal as well as the misc. ' it appears that the courts below have miserably failed to adopt a pragmatic rational approach.pradipta ray, j. 1. defendant no. 1-petitioner has filed this application under section 115 of the civil procedure code (in short 'cpc') challenging the order dated september 4, 1993 passed by the district judge, sundargarh in misc. appeal no. 3 of 1992 dismissing the petitioner's appeal against an order passed by the trial court rejecting his application under order 9, rule 13, cpc.2. the plaintiffs filed title suit no. 76 of 1986 in the court of the subordinate judge, sundargarh (at present designated as civil judge, senior division). on october 4,1988 defendant no. 1 petitioner filed an application praying for time to file written statement. said application was rejected, and the suit was set ex parte and posted to november 3, 1988 for hearing. on november 3, 1988 the case was posted to december 2, 1988 and ultimately on december 3, 1988 an ex parte decree was passed. on january 16, 1989 the present petitioner filed an application under order 9, rule 13, cpc. an application for condonation of delay was filed on december 6, 1989. the trial court by order dated january 25, 1992 rejected the said application for setting aside the ex parte decree.3. petitioner filed misc. appeal no. 3 of 1992 eight days beyond the period of limitation- by the impugned order the appellate court dismissed the petitioner's application for condonation of delay in presenting the appeal as well as the misc. appeal on merits.4. petitioner has stated that he was suffering from infective hepatitis and was under treatment in government hospital, balgaon from november 23, 1988 till january 11,1989. he has filed a medical certificate in suport of his case. by the said medical certificate dated january 11, 1989 the doctor also certified that he had been cured of the ailment and could move out. the court of appeal below took exception that the period between january 12, 1989 and january 15, 1989 was not explained. the court below was of the view that each day's delay was to be explained. the supreme court in alr 1987 sc 1353 (collector, land acquisition, anantnag and anr. v. mst. katiji and ors.) has held :'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 commonsense pragmatic manner.'it appears that the courts below have miserably failed to adopt a pragmatic rational approach. if the illness was believed consumption of 3 days after recovery from illness for filing application under order 9, rule 13, cpc cannot by any stretch of imagination be held as anything unusual or unreasonable. it is obvious that a person after recovery from his illness will be required to meet his lawyer, give him necessary instructions and the lawyer will prepare necessary application. the approach is over-technical and contrary to liberal and justice-oriented approach which is the requirement in dealing with such cases. it appears that the trial court also committed the same mistake and adopted an unreasonable over-strict approach. while dealing with the petitioner's application for condoning eight days' delay in filing misc. appeal, the same rigid approach was adopted. the petitioner has given explanation for those 8 days' delay. it should be remembered that one does not normally gain anything by making delay intentionally.5. the approach of the courts below does not further cause of justice, but defeats the same. it has again and again been pointed out that the court should see that valuable tights of the parties are determined on contest. in the present case, the ex parte decree was passed on december 3,1988 and the application under order 9, rule 13, cpc was filed on january 16, 1989. the appeal was filed 8 days' beyond time. there was not such delay in filing the application or the appeal. materials on record show that the delay in both the cases has been sufficiently explained.6. for the foregoing reasons, impugned orders of the courts below are set aside. delay in filing misc. appeal no. 3 of 1992 is condoned. by this order said misc. appeal is also disposed on petitioner's application under order 9, rule 18. cpc is allowed. the ex parte decree passed by the trial court is set aside. the trial court is directed to dispose of the suit within a period of four months from the date of arrival of the records.7. revision is allowed. no costs.