State of Punjab Vs. Ex. Constable Swaran Singh

Decided On : Sep-27-2002

Court : Punjab and Haryana

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			'appealno' => 'Civil Revision No. 3619 of 2001',
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			'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenges order dated 6.10.2000 passed by the District Judge, Hoshiarpur dismissing an application of the defendant-petitioner in which prayer for condonation of delay in filing the appeal under Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> (for brevity, 'the Act') was made. As a consequence to the dismissal of the application, the appeal itself has been dismissed as time barred.</p><p style="text-align: justify;">2. In order to put the controversy in its proper perspective, it would be apposite tc make a reference to few facts. Plaintiff-respondent filed Civil Suit No. 285 of 1996 on 24.10.1996 seeking a declaration to the effect that order dated 6.12.1995 passed by the defendant-petitioner dismissing him from service is ultra vires, unconstitutional and against the principles of natural justice. A further relief of mandatory injunction was also prayed that the defendant-petitioner be directed to pay him arrears of his pay due to him and permit him to join his duties as constable. The suit of the plaintiff-respondent was decreed in his favour ex pare with consequential relief of mandatory injunction declaring the order dated 6.12.1995 as illegal, null, void and against the principles of natural justice. A further declaration was given in favour of the plaintiff-respondent that he continued in service as constable in the department and the defendant-petitioner was directed to. allow him to join the duties. Aggrieved against the impugned order, an appeal was filed by the defendant-petitioner before the District Judge, Hoshiarpur. Along with the appeal, an application under Section 5 of the Act seeking condonation of 127 days delay in filing the appeal was also moved. The application was contested by the plaintiff-respondent and an issue was framed to the effect as to whether there were sufficient grounds to condone the delay in filing of the appeal. The principal reasons pleaded in the application explaining the delay in filing of the appeal are that the Commandant, 9th Battalion, Punjab Armed Police, Amritsar (for brevity, 'the Commandant') who had passed the order dated 6.12.1995 uismissing the plaintiff-respondent Swaran Singh from service was not made party to the suit. The state of Punjab through the Secretary, Department, of Home, Government of Punjab was alone made a party. No summons were ever served through the Home Secretary on the Commandant. It has further been claimed that the Commandant came to know about the judgment and decree dated 25.11.1998 passed in favour of the plaintiff-respondent on 18.1.1999 when the plaintiff-respondent approached him to join his duties. Therefore, prayer was made for condonation of delay in filing of the appeal from 18.1.1999 to the date of the appeal because after the date of knowledge on 18.1.1999, the Commandant addressed a communication dated 22.1.1999 to the Additional Director General of Police, P.A.P., Jalandhar Cantt. seeking his legal opinion for taking further action in the matter. Mr. Joginder Pal, Assistant District Attorney, P.A.P. expressed the opinion that the judgment and decree dated 25.11.1998 could be challenged at that stage. Thereafter, the Commandant addressed communication dated 2.2.1999 to the Director General of Police, Punjab and requested him to approach the Legal Remembrancer-cum-Director, Prosecution and Litigation, Punjab, Chandigarh to issue necessary instructions to the District Attorney, Hoshiarpur to file an appeal against the aforementioned judgment and decree. Accordingly, the Director General of Police, Punjab requested the Director, Prosecution and Litigation, Punjab to send his opinion. The Government of Punjab accorded sanction to the Director, Prosecution and Litigation for defending the case on public expense and also to issue necessary instructions to the District Attorney, Hoshiarpur. One Mr. Sarwan Singh, Deputy Superintendent of Police. Head Constable Harinder Singh and Assistant Court Clerk of 9th Battalion, P.A.P., Amritsar were deputed to pursue the case in the office of Director General of Police, Punjab, Director, Prosecution and Litigation, Punjab and the Secretary to Government of Punjab, Department of Home. They attended their office on 24.2.1999, 25.2.1999, 11.3.1999 and 12.3.1999. On 21.3.1999, the Department of Home Affairs and Justice sent advice of the Director General of Police with instructions to file the appeal on behalf of the defendant-petitioner. A certified copy of the judgment and decree dated 25.11.1998 was applied by the District Attorney on 30.3.2000. Thereafter, the certified copy of the judgment and decree dated 25.11.1998 was sent along with his comments by the Assistant District Attorney to the District Attorney, Hoshiarpur on 9.4.1999 who considered the case and sent his opinion to the Director, Prosecution and Litigation, Punjab, The latter issued the instructions to the District Attorney, Hoshiarpur for filing the appeal on 4.5.1999 and then the District Attorney conveyed the Commandant on 7.5.1999 and the communication was received in the office of the Commandant on 22.5.1999 on which direction was issued to file the appeal and eventually the appeal was filed on 26.5.1999. On the basis of aforesaid averments made in the application, the delay of 127 days in filing the appeal has been sought to be condoned.</p><p style="text-align: justify;">3. The application filed by the defendant-petitioner was opposed by raising various objections. The plaintiff-respondent averred that there is long and unexplained delay in filing the appeal and only an application under Order IX Rule 13 of the Code for setting aside the ex parte judgment and decree was maintainable. The District Judge after framing an issue and recording of evidence dismissed the application by recording the following order:-</p><p style="text-align: justify;">'........the fact with regard to the passing of judgment and decree dated 25.11.98 passed by the Court of Sh. A.K. Mehta, the then learned Civil Judge Sr. Division.Dasuya, came to the notice and knowledge of the appellant State, at least on 18.1.99,when Sarwan Singh plaintiff-respondent went to the office of his employer with copyof the judgment, with a prayer that he may be allowed to join the duty as per thejudgment and decree of the Court. Then Ex.Al, copy of the opinion of the AssistantDistrict Attorney, shows that the matter was perused and legal opinion in the matterwas sought and then letter was written to the D.G.P. Punjab, Chandigarh copy ofwhich is Ex.A2, and thereafter the matter was also taken up with the Director,Prosecution and Litigation vide letter copy of which is Ex-A3 and thereafter the letterswere exchanged, copy of which are Exts-A4 and A5. Writing of letters by thefunctioning officials of Punjab State appellant itself, cannot be taken to be a sufficientground for condoning the delay in filing the appeal became that cannot amount toexplanation of each day's delay. Further, the statement of Sarwan Singh, DSP (AW1)shows that in his examination-in-chief he admits that the summons of the case inwhich the trial Court passed the judgment and decree in question, were received in theoffice of Home Secretary, Punjab Chandigarh on 7.8.88 and entry to that effect wasmade in the receipt register of that office and the summons were then marked to theconcerned Home-V Branch, but thereafter that summon was not traceable. This showsthat the appellant was duly served in the suit and the concerned department of theState of Punjab was seized of the matter, but it never wanted to contest the suit andallowed the suit to be proceeded against ex parte. This again convinces the court thatwhen the judgment and decree was passed against the appellant by the lower court,thereafter the officials of the concerned office of the appellant were not interested tofile the appeal in time. So there is intentional delay of 127 days in filing the appeal,for no reason and such delay cannot be condoned. There can be some extenuatingcircumstances justifying the condonation of delay under Section 5 of the LimitationAct, when the party is ignorant of his right, but such circumstances are not availableon the file of the appellant in the present case. The officials of the appellant were notabsolved of their duty to appeal within the period of limitation, simply because whenthe respondent with copy of the judgment and decree approached the department tojoin his duty, legal opinion in the matter was sought and certain letters wereexchanged within the department, because the officials/officers of the appellant mustbe knowing the legal implications of not filing the appeal in time. Ignorance of lawarising from not taking any legal advise or having taken legal advice but not pursuingthe same, or pursuing the same thinking that the Court will adopts a casual and liberalapproach in the matter, are not sufficient cases within the ambit of Section 5 of theLimitation Act.'</p><p style="text-align: justify;">4. Mr. Lakhinder Singh, Additional Advocate General, Punjab has argued that once the concerned department who has passed the order has not been impleaded as party, no knowledge of passing of judgment and decree could be imputed to that department. According to the learned counsel, even such a judgment and decree would not be binding on the department because it was not made party by the plaintiff-respondent. Learned counsel has further argued that delay of 127 days after the date of knowledge is also liable to be condoned because a close perusal of the averments made in the-application under Section 5 of the Act reveal that tremendous efforts have been made by the Commandant to get an appeal filed. Those efforts made by the Commandant would show that the defendant-petitioner could not considered to be negligent and lazy. On the contrary, they have to be considered as vigilant. Therefore, according to the learned counsel, the delay in filing the appeal deserves to be condoned.</p><p style="text-align: justify;">5. Mr. M.S. Lobana, learned counsel for the plaintiff-respondent has argued that writing of letters by one department to another would not constitute any legal basis for condonation of delay. According to the learned counsel, such inter departmental communications would not be covered by the expression 'sufficient cause' within the meaning of Section 5 of the Act which is a sine qua non for condoning the delay. Addressing on merits, the learned counsel has submitted that even otherwise, there is no substance in the appeal because the order of dismissal dated 6.12.1995 has been set aside by the Civil Judge on the ground that the principles of natural justice have not been followed. Therefore, the appeal is liable to be dismissed by the District Judge, even on merits.</p><p style="text-align: justify;">6. After hearing learned counsel for the parties. I am of the considered opinion that the order passed by the learned District Judge is not sustainable in the eyes of law. The approach of the learned District Judge requiring that every day's delay has to be explained is directly in conflict with the observations made by the Supreme Court in the case. 'Collector Land Acquisition', Anantnag and Anr. v. Mst. Ratiji and Ors. AIR 1987 SC 1353. The observations made by their Lordships in this regard read as under :-</p><p style="text-align: justify;">''The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 for 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 principles as it is realized that:-</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 pragmatic manner.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.' </p><p style="text-align: justify;">7. Apart from the fact that detail explanation showing vigilance and interest of the commandant to file an appeal, it is evident that the cause shown by him would be sufficient for condoning the delay. In case where the larger public interest is sought to be served by the condonation of delay, a more liberal approach has to be followed as per dicta of the Supreme Court in numerous decisions. In the case of Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors.? (2002) 3 SCC 195 their Lordships have recommended for adopting a liberal approach in cases where the delay is sought to be condoned by the State and the observations of their Lordships read as under:-</p><p style="text-align: justify;">'Thus it becomes plain that the expression 'sufficient cause' within the meaningof Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provisionshould receive a liberal construction so as to advance substantial justice when nonegligence or inaction or want of bona fides is imputable to a party. In a particularcase whether explanation furnished would constitute 'sufficient cause' or not will bedependent upon facts of each case. There cannot be a straitjacket formula foraccepting or rejecting explanation furnished for the delay caused in taking steps. Butone thing is clear that the courts should not proceed with the tendency of finding faultwith the cause shown and reject the petitioner by a slipshod order in over-jubilation ofdisposal drive. Acceptance of explanation furnished should be the rule and refusal, anexception, more so when no negligence or inaction or want of bona fides can beimputed to the defaulting party. On the other hand, while considering the matter thecourts should not lose sight of the fact that by not taking steps within the timeprescribed a valuable right has accrued to the other party which should not be lightlydefeated by condoning delay in a routine-like manner. However, by taking a pedanticand hypertechnical view of the matter the explanation furnished should not be rejectedwhen stakes are high and/or arguable points of facts and law are involved in the case,causing enormous loss and irreparable injury to the party against whom the listerminates, either by default or inaction and defeating valuable right of such a party tohave the decision on merit. While considering the matter, courts have to strike abalance between resultant effect of the order it is going to pass upon the parties eitherway.' </p><p style="text-align: justify;">8. Compelling reason for me to condone the delay in filing of the appeal by the defendant-petitioner is that the Commandant had not been impleaded as a party. The Commandant was a necessary as well as a proper party because it was the Commandant who has passed the order of dismissal of the plaintiff-respondent. The whole record of the case is with the Commandant who is the appointing authority of the plaintiff-respondent. It is understandable that in cases where the Government is the appointing authority, the State through the concerned department could be considered necessary and a proper party but in cases where an authority subordinate to the Government is the appointing authority and the orders have been passed by that authority, then such an authority would be necessary as well as proper party. The non impleadment of the Commandant is a factor which itself be sufficient to condone the delay in filing of the appeal. Still further right of one appeal is the rule in all jurisdiction as it has been universally accepted that to err is human and one review at least should be provided. In the present case even initially the defendant-petitioner has been proceeded ex pate. Therefore, the application filed by the defendant-petitioner under Section 5 of the Act for condonation of 127 days delay in filing of the appeal deserves to be accepted and the delay is liable to be condoned.</p><p style="text-align: justify;">9. The argument of the learned counsel for the plaintiff-respondent that defendant petitioner has a weak case on merits has not persuaded me to take the view that on that score alone, the delay should not be condoned because the question of merit can only be considered when the delay in filing of the appeal is condoned. Therefore, I do not find any substance in the aforementioned submission of the learned counsel for the plaintiff-respondent.</p><p style="text-align: justify;">10. For the reasons recorded above, this revision petition succeeds. The impugnedorder dated 6.10.2000 is set aside. The delay of 127 days in filing of the appeal is condoned. The District Judge, Hoshiarpur is directed to decide the appeal of the defendantpetitioner on merits. Parties through their counsel are directed to appear before the District Judge, Hoshiarpur on 23.10.2002.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$desc = array(
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		'id' => '631716',
		'acts' => '<a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 5; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 1, Rule 10',
		'appealno' => 'Civil Revision No. 3619 of 2001',
		'appellant' => 'State of Punjab',
		'authreffered' => '',
		'casename' => 'State of Punjab Vs. Ex. Constable Swaran Singh',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Lakhinder Singh, Addl. A.G.',
		'counseldef' => ' M.S. Lobana, Adv.',
		'court' => 'Punjab and Haryana',
		'court_type' => 'HC',
		'decidedon' => '2002-09-27',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
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		'judge' => ' M.K. Kumar, J.',
		'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenges order dated 6.10.2000 passed by the District Judge, Hoshiarpur dismissing an application of the defendant-petitioner in which prayer for condonation of delay in filing the appeal under Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> (for brevity, 'the Act') was made. As a consequence to the dismissal of the application, the appeal itself has been dismissed as time barred.</p><p style="text-align: justify;">2. In order to put the controversy in its proper perspective, it would be apposite tc make a reference to few facts. Plaintiff-respondent filed Civil Suit No. 285 of 1996 on 24.10.1996 seeking a declaration to the effect that order dated 6.12.1995 passed by the defendant-petitioner dismissing him from service is ultra vires, unconstitutional and against the principles of natural justice. A further relief of mandatory injunction was also prayed that the defendant-petitioner be directed to pay him arrears of his pay due to him and permit him to join his duties as constable. The suit of the plaintiff-respondent was decreed in his favour ex pare with consequential relief of mandatory injunction declaring the order dated 6.12.1995 as illegal, null, void and against the principles of natural justice. A further declaration was given in favour of the plaintiff-respondent that he continued in service as constable in the department and the defendant-petitioner was directed to. allow him to join the duties. Aggrieved against the impugned order, an appeal was filed by the defendant-petitioner before the District Judge, Hoshiarpur. Along with the appeal, an application under Section 5 of the Act seeking condonation of 127 days delay in filing the appeal was also moved. The application was contested by the plaintiff-respondent and an issue was framed to the effect as to whether there were sufficient grounds to condone the delay in filing of the appeal. The principal reasons pleaded in the application explaining the delay in filing of the appeal are that the Commandant, 9th Battalion, Punjab Armed Police, Amritsar (for brevity, 'the Commandant') who had passed the order dated 6.12.1995 uismissing the plaintiff-respondent Swaran Singh from service was not made party to the suit. The state of Punjab through the Secretary, Department, of Home, Government of Punjab was alone made a party. No summons were ever served through the Home Secretary on the Commandant. It has further been claimed that the Commandant came to know about the judgment and decree dated 25.11.1998 passed in favour of the plaintiff-respondent on 18.1.1999 when the plaintiff-respondent approached him to join his duties. Therefore, prayer was made for condonation of delay in filing of the appeal from 18.1.1999 to the date of the appeal because after the date of knowledge on 18.1.1999, the Commandant addressed a communication dated 22.1.1999 to the Additional Director General of Police, P.A.P., Jalandhar Cantt. seeking his legal opinion for taking further action in the matter. Mr. Joginder Pal, Assistant District Attorney, P.A.P. expressed the opinion that the judgment and decree dated 25.11.1998 could be challenged at that stage. Thereafter, the Commandant addressed communication dated 2.2.1999 to the Director General of Police, Punjab and requested him to approach the Legal Remembrancer-cum-Director, Prosecution and Litigation, Punjab, Chandigarh to issue necessary instructions to the District Attorney, Hoshiarpur to file an appeal against the aforementioned judgment and decree. Accordingly, the Director General of Police, Punjab requested the Director, Prosecution and Litigation, Punjab to send his opinion. The Government of Punjab accorded sanction to the Director, Prosecution and Litigation for defending the case on public expense and also to issue necessary instructions to the District Attorney, Hoshiarpur. One Mr. Sarwan Singh, Deputy Superintendent of Police. Head Constable Harinder Singh and Assistant Court Clerk of 9th Battalion, P.A.P., Amritsar were deputed to pursue the case in the office of Director General of Police, Punjab, Director, Prosecution and Litigation, Punjab and the Secretary to Government of Punjab, Department of Home. They attended their office on 24.2.1999, 25.2.1999, 11.3.1999 and 12.3.1999. On 21.3.1999, the Department of Home Affairs and Justice sent advice of the Director General of Police with instructions to file the appeal on behalf of the defendant-petitioner. A certified copy of the judgment and decree dated 25.11.1998 was applied by the District Attorney on 30.3.2000. Thereafter, the certified copy of the judgment and decree dated 25.11.1998 was sent along with his comments by the Assistant District Attorney to the District Attorney, Hoshiarpur on 9.4.1999 who considered the case and sent his opinion to the Director, Prosecution and Litigation, Punjab, The latter issued the instructions to the District Attorney, Hoshiarpur for filing the appeal on 4.5.1999 and then the District Attorney conveyed the Commandant on 7.5.1999 and the communication was received in the office of the Commandant on 22.5.1999 on which direction was issued to file the appeal and eventually the appeal was filed on 26.5.1999. On the basis of aforesaid averments made in the application, the delay of 127 days in filing the appeal has been sought to be condoned.</p><p style="text-align: justify;">3. The application filed by the defendant-petitioner was opposed by raising various objections. The plaintiff-respondent averred that there is long and unexplained delay in filing the appeal and only an application under Order IX Rule 13 of the Code for setting aside the ex parte judgment and decree was maintainable. The District Judge after framing an issue and recording of evidence dismissed the application by recording the following order:-</p><p style="text-align: justify;">'........the fact with regard to the passing of judgment and decree dated 25.11.98 passed by the Court of Sh. A.K. Mehta, the then learned Civil Judge Sr. Division.Dasuya, came to the notice and knowledge of the appellant State, at least on 18.1.99,when Sarwan Singh plaintiff-respondent went to the office of his employer with copyof the judgment, with a prayer that he may be allowed to join the duty as per thejudgment and decree of the Court. Then Ex.Al, copy of the opinion of the AssistantDistrict Attorney, shows that the matter was perused and legal opinion in the matterwas sought and then letter was written to the D.G.P. Punjab, Chandigarh copy ofwhich is Ex.A2, and thereafter the matter was also taken up with the Director,Prosecution and Litigation vide letter copy of which is Ex-A3 and thereafter the letterswere exchanged, copy of which are Exts-A4 and A5. Writing of letters by thefunctioning officials of Punjab State appellant itself, cannot be taken to be a sufficientground for condoning the delay in filing the appeal became that cannot amount toexplanation of each day's delay. Further, the statement of Sarwan Singh, DSP (AW1)shows that in his examination-in-chief he admits that the summons of the case inwhich the trial Court passed the judgment and decree in question, were received in theoffice of Home Secretary, Punjab Chandigarh on 7.8.88 and entry to that effect wasmade in the receipt register of that office and the summons were then marked to theconcerned Home-V Branch, but thereafter that summon was not traceable. This showsthat the appellant was duly served in the suit and the concerned department of theState of Punjab was seized of the matter, but it never wanted to contest the suit andallowed the suit to be proceeded against ex parte. This again convinces the court thatwhen the judgment and decree was passed against the appellant by the lower court,thereafter the officials of the concerned office of the appellant were not interested tofile the appeal in time. So there is intentional delay of 127 days in filing the appeal,for no reason and such delay cannot be condoned. There can be some extenuatingcircumstances justifying the condonation of delay under Section 5 of the LimitationAct, when the party is ignorant of his right, but such circumstances are not availableon the file of the appellant in the present case. The officials of the appellant were notabsolved of their duty to appeal within the period of limitation, simply because whenthe respondent with copy of the judgment and decree approached the department tojoin his duty, legal opinion in the matter was sought and certain letters wereexchanged within the department, because the officials/officers of the appellant mustbe knowing the legal implications of not filing the appeal in time. Ignorance of lawarising from not taking any legal advise or having taken legal advice but not pursuingthe same, or pursuing the same thinking that the Court will adopts a casual and liberalapproach in the matter, are not sufficient cases within the ambit of Section 5 of theLimitation Act.'</p><p style="text-align: justify;">4. Mr. Lakhinder Singh, Additional Advocate General, Punjab has argued that once the concerned department who has passed the order has not been impleaded as party, no knowledge of passing of judgment and decree could be imputed to that department. According to the learned counsel, even such a judgment and decree would not be binding on the department because it was not made party by the plaintiff-respondent. Learned counsel has further argued that delay of 127 days after the date of knowledge is also liable to be condoned because a close perusal of the averments made in the-application under Section 5 of the Act reveal that tremendous efforts have been made by the Commandant to get an appeal filed. Those efforts made by the Commandant would show that the defendant-petitioner could not considered to be negligent and lazy. On the contrary, they have to be considered as vigilant. Therefore, according to the learned counsel, the delay in filing the appeal deserves to be condoned.</p><p style="text-align: justify;">5. Mr. M.S. Lobana, learned counsel for the plaintiff-respondent has argued that writing of letters by one department to another would not constitute any legal basis for condonation of delay. According to the learned counsel, such inter departmental communications would not be covered by the expression 'sufficient cause' within the meaning of Section 5 of the Act which is a sine qua non for condoning the delay. Addressing on merits, the learned counsel has submitted that even otherwise, there is no substance in the appeal because the order of dismissal dated 6.12.1995 has been set aside by the Civil Judge on the ground that the principles of natural justice have not been followed. Therefore, the appeal is liable to be dismissed by the District Judge, even on merits.</p><p style="text-align: justify;">6. After hearing learned counsel for the parties. I am of the considered opinion that the order passed by the learned District Judge is not sustainable in the eyes of law. The approach of the learned District Judge requiring that every day's delay has to be explained is directly in conflict with the observations made by the Supreme Court in the case. 'Collector Land Acquisition', Anantnag and Anr. v. Mst. Ratiji and Ors. AIR 1987 SC 1353. The observations made by their Lordships in this regard read as under :-</p><p style="text-align: justify;">''The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 for 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 principles as it is realized that:-</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 pragmatic manner.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.' </p><p style="text-align: justify;">7. Apart from the fact that detail explanation showing vigilance and interest of the commandant to file an appeal, it is evident that the cause shown by him would be sufficient for condoning the delay. In case where the larger public interest is sought to be served by the condonation of delay, a more liberal approach has to be followed as per dicta of the Supreme Court in numerous decisions. In the case of Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors.? (2002) 3 SCC 195 their Lordships have recommended for adopting a liberal approach in cases where the delay is sought to be condoned by the State and the observations of their Lordships read as under:-</p><p style="text-align: justify;">'Thus it becomes plain that the expression 'sufficient cause' within the meaningof Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provisionshould receive a liberal construction so as to advance substantial justice when nonegligence or inaction or want of bona fides is imputable to a party. In a particularcase whether explanation furnished would constitute 'sufficient cause' or not will bedependent upon facts of each case. There cannot be a straitjacket formula foraccepting or rejecting explanation furnished for the delay caused in taking steps. Butone thing is clear that the courts should not proceed with the tendency of finding faultwith the cause shown and reject the petitioner by a slipshod order in over-jubilation ofdisposal drive. Acceptance of explanation furnished should be the rule and refusal, anexception, more so when no negligence or inaction or want of bona fides can beimputed to the defaulting party. On the other hand, while considering the matter thecourts should not lose sight of the fact that by not taking steps within the timeprescribed a valuable right has accrued to the other party which should not be lightlydefeated by condoning delay in a routine-like manner. However, by taking a pedanticand hypertechnical view of the matter the explanation furnished should not be rejectedwhen stakes are high and/or arguable points of facts and law are involved in the case,causing enormous loss and irreparable injury to the party against whom the listerminates, either by default or inaction and defeating valuable right of such a party tohave the decision on merit. While considering the matter, courts have to strike abalance between resultant effect of the order it is going to pass upon the parties eitherway.' </p><p style="text-align: justify;">8. Compelling reason for me to condone the delay in filing of the appeal by the defendant-petitioner is that the Commandant had not been impleaded as a party. The Commandant was a necessary as well as a proper party because it was the Commandant who has passed the order of dismissal of the plaintiff-respondent. The whole record of the case is with the Commandant who is the appointing authority of the plaintiff-respondent. It is understandable that in cases where the Government is the appointing authority, the State through the concerned department could be considered necessary and a proper party but in cases where an authority subordinate to the Government is the appointing authority and the orders have been passed by that authority, then such an authority would be necessary as well as proper party. The non impleadment of the Commandant is a factor which itself be sufficient to condone the delay in filing of the appeal. Still further right of one appeal is the rule in all jurisdiction as it has been universally accepted that to err is human and one review at least should be provided. In the present case even initially the defendant-petitioner has been proceeded ex pate. Therefore, the application filed by the defendant-petitioner under Section 5 of the Act for condonation of 127 days delay in filing of the appeal deserves to be accepted and the delay is liable to be condoned.</p><p style="text-align: justify;">9. The argument of the learned counsel for the plaintiff-respondent that defendant petitioner has a weak case on merits has not persuaded me to take the view that on that score alone, the delay should not be condoned because the question of merit can only be considered when the delay in filing of the appeal is condoned. Therefore, I do not find any substance in the aforementioned submission of the learned counsel for the plaintiff-respondent.</p><p style="text-align: justify;">10. For the reasons recorded above, this revision petition succeeds. The impugnedorder dated 6.10.2000 is set aside. The delay of 127 days in filing of the appeal is condoned. The District Judge, Hoshiarpur is directed to decide the appeal of the defendantpetitioner on merits. Parties through their counsel are directed to appear before the District Judge, Hoshiarpur on 23.10.2002.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'Judgement' => array(
			'id' => '631716',
			'acts' => '<a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 5; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 1, Rule 10',
			'appealno' => 'Civil Revision No. 3619 of 2001',
			'appellant' => 'State of Punjab',
			'authreffered' => '',
			'casename' => 'State of Punjab Vs. Ex. Constable Swaran Singh',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors.;',
			'citingcases' => '',
			'counselplain' => ' Lakhinder Singh, Addl. A.G.',
			'counseldef' => ' M.S. Lobana, Adv.',
			'court' => 'Punjab and Haryana',
			'court_type' => 'HC',
			'decidedon' => '2002-09-27',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.K. Kumar, J.',
			'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenges order dated 6.10.2000 passed by the District Judge, Hoshiarpur dismissing an application of the defendant-petitioner in which prayer for condonation of delay in filing the appeal under Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> (for brevity, 'the Act') was made. As a consequence to the dismissal of the application, the appeal itself has been dismissed as time barred.</p><p style="text-align: justify;">2. In order to put the controversy in its proper perspective, it would be apposite tc make a reference to few facts. Plaintiff-respondent filed Civil Suit No. 285 of 1996 on 24.10.1996 seeking a declaration to the effect that order dated 6.12.1995 passed by the defendant-petitioner dismissing him from service is ultra vires, unconstitutional and against the principles of natural justice. A further relief of mandatory injunction was also prayed that the defendant-petitioner be directed to pay him arrears of his pay due to him and permit him to join his duties as constable. The suit of the plaintiff-respondent was decreed in his favour ex pare with consequential relief of mandatory injunction declaring the order dated 6.12.1995 as illegal, null, void and against the principles of natural justice. A further declaration was given in favour of the plaintiff-respondent that he continued in service as constable in the department and the defendant-petitioner was directed to. allow him to join the duties. Aggrieved against the impugned order, an appeal was filed by the defendant-petitioner before the District Judge, Hoshiarpur. Along with the appeal, an application under Section 5 of the Act seeking condonation of 127 days delay in filing the appeal was also moved. The application was contested by the plaintiff-respondent and an issue was framed to the effect as to whether there were sufficient grounds to condone the delay in filing of the appeal. The principal reasons pleaded in the application explaining the delay in filing of the appeal are that the Commandant, 9th Battalion, Punjab Armed Police, Amritsar (for brevity, 'the Commandant') who had passed the order dated 6.12.1995 uismissing the plaintiff-respondent Swaran Singh from service was not made party to the suit. The state of Punjab through the Secretary, Department, of Home, Government of Punjab was alone made a party. No summons were ever served through the Home Secretary on the Commandant. It has further been claimed that the Commandant came to know about the judgment and decree dated 25.11.1998 passed in favour of the plaintiff-respondent on 18.1.1999 when the plaintiff-respondent approached him to join his duties. Therefore, prayer was made for condonation of delay in filing of the appeal from 18.1.1999 to the date of the appeal because after the date of knowledge on 18.1.1999, the Commandant addressed a communication dated 22.1.1999 to the Additional Director General of Police, P.A.P., Jalandhar Cantt. seeking his legal opinion for taking further action in the matter. Mr. Joginder Pal, Assistant District Attorney, P.A.P. expressed the opinion that the judgment and decree dated 25.11.1998 could be challenged at that stage. Thereafter, the Commandant addressed communication dated 2.2.1999 to the Director General of Police, Punjab and requested him to approach the Legal Remembrancer-cum-Director, Prosecution and Litigation, Punjab, Chandigarh to issue necessary instructions to the District Attorney, Hoshiarpur to file an appeal against the aforementioned judgment and decree. Accordingly, the Director General of Police, Punjab requested the Director, Prosecution and Litigation, Punjab to send his opinion. The Government of Punjab accorded sanction to the Director, Prosecution and Litigation for defending the case on public expense and also to issue necessary instructions to the District Attorney, Hoshiarpur. One Mr. Sarwan Singh, Deputy Superintendent of Police. Head Constable Harinder Singh and Assistant Court Clerk of 9th Battalion, P.A.P., Amritsar were deputed to pursue the case in the office of Director General of Police, Punjab, Director, Prosecution and Litigation, Punjab and the Secretary to Government of Punjab, Department of Home. They attended their office on 24.2.1999, 25.2.1999, 11.3.1999 and 12.3.1999. On 21.3.1999, the Department of Home Affairs and Justice sent advice of the Director General of Police with instructions to file the appeal on behalf of the defendant-petitioner. A certified copy of the judgment and decree dated 25.11.1998 was applied by the District Attorney on 30.3.2000. Thereafter, the certified copy of the judgment and decree dated 25.11.1998 was sent along with his comments by the Assistant District Attorney to the District Attorney, Hoshiarpur on 9.4.1999 who considered the case and sent his opinion to the Director, Prosecution and Litigation, Punjab, The latter issued the instructions to the District Attorney, Hoshiarpur for filing the appeal on 4.5.1999 and then the District Attorney conveyed the Commandant on 7.5.1999 and the communication was received in the office of the Commandant on 22.5.1999 on which direction was issued to file the appeal and eventually the appeal was filed on 26.5.1999. On the basis of aforesaid averments made in the application, the delay of 127 days in filing the appeal has been sought to be condoned.</p><p style="text-align: justify;">3. The application filed by the defendant-petitioner was opposed by raising various objections. The plaintiff-respondent averred that there is long and unexplained delay in filing the appeal and only an application under Order IX Rule 13 of the Code for setting aside the ex parte judgment and decree was maintainable. The District Judge after framing an issue and recording of evidence dismissed the application by recording the following order:-</p><p style="text-align: justify;">'........the fact with regard to the passing of judgment and decree dated 25.11.98 passed by the Court of Sh. A.K. Mehta, the then learned Civil Judge Sr. Division.Dasuya, came to the notice and knowledge of the appellant State, at least on 18.1.99,when Sarwan Singh plaintiff-respondent went to the office of his employer with copyof the judgment, with a prayer that he may be allowed to join the duty as per thejudgment and decree of the Court. Then Ex.Al, copy of the opinion of the AssistantDistrict Attorney, shows that the matter was perused and legal opinion in the matterwas sought and then letter was written to the D.G.P. Punjab, Chandigarh copy ofwhich is Ex.A2, and thereafter the matter was also taken up with the Director,Prosecution and Litigation vide letter copy of which is Ex-A3 and thereafter the letterswere exchanged, copy of which are Exts-A4 and A5. Writing of letters by thefunctioning officials of Punjab State appellant itself, cannot be taken to be a sufficientground for condoning the delay in filing the appeal became that cannot amount toexplanation of each day's delay. Further, the statement of Sarwan Singh, DSP (AW1)shows that in his examination-in-chief he admits that the summons of the case inwhich the trial Court passed the judgment and decree in question, were received in theoffice of Home Secretary, Punjab Chandigarh on 7.8.88 and entry to that effect wasmade in the receipt register of that office and the summons were then marked to theconcerned Home-V Branch, but thereafter that summon was not traceable. This showsthat the appellant was duly served in the suit and the concerned department of theState of Punjab was seized of the matter, but it never wanted to contest the suit andallowed the suit to be proceeded against ex parte. This again convinces the court thatwhen the judgment and decree was passed against the appellant by the lower court,thereafter the officials of the concerned office of the appellant were not interested tofile the appeal in time. So there is intentional delay of 127 days in filing the appeal,for no reason and such delay cannot be condoned. There can be some extenuatingcircumstances justifying the condonation of delay under Section 5 of the LimitationAct, when the party is ignorant of his right, but such circumstances are not availableon the file of the appellant in the present case. The officials of the appellant were notabsolved of their duty to appeal within the period of limitation, simply because whenthe respondent with copy of the judgment and decree approached the department tojoin his duty, legal opinion in the matter was sought and certain letters wereexchanged within the department, because the officials/officers of the appellant mustbe knowing the legal implications of not filing the appeal in time. Ignorance of lawarising from not taking any legal advise or having taken legal advice but not pursuingthe same, or pursuing the same thinking that the Court will adopts a casual and liberalapproach in the matter, are not sufficient cases within the ambit of Section 5 of theLimitation Act.'</p><p style="text-align: justify;">4. Mr. Lakhinder Singh, Additional Advocate General, Punjab has argued that once the concerned department who has passed the order has not been impleaded as party, no knowledge of passing of judgment and decree could be imputed to that department. According to the learned counsel, even such a judgment and decree would not be binding on the department because it was not made party by the plaintiff-respondent. Learned counsel has further argued that delay of 127 days after the date of knowledge is also liable to be condoned because a close perusal of the averments made in the-application under Section 5 of the Act reveal that tremendous efforts have been made by the Commandant to get an appeal filed. Those efforts made by the Commandant would show that the defendant-petitioner could not considered to be negligent and lazy. On the contrary, they have to be considered as vigilant. Therefore, according to the learned counsel, the delay in filing the appeal deserves to be condoned.</p><p style="text-align: justify;">5. Mr. M.S. Lobana, learned counsel for the plaintiff-respondent has argued that writing of letters by one department to another would not constitute any legal basis for condonation of delay. According to the learned counsel, such inter departmental communications would not be covered by the expression 'sufficient cause' within the meaning of Section 5 of the Act which is a sine qua non for condoning the delay. Addressing on merits, the learned counsel has submitted that even otherwise, there is no substance in the appeal because the order of dismissal dated 6.12.1995 has been set aside by the Civil Judge on the ground that the principles of natural justice have not been followed. Therefore, the appeal is liable to be dismissed by the District Judge, even on merits.</p><p style="text-align: justify;">6. After hearing learned counsel for the parties. I am of the considered opinion that the order passed by the learned District Judge is not sustainable in the eyes of law. The approach of the learned District Judge requiring that every day's delay has to be explained is directly in conflict with the observations made by the Supreme Court in the case. 'Collector Land Acquisition', Anantnag and Anr. v. Mst. Ratiji and Ors. AIR 1987 SC 1353. The observations made by their Lordships in this regard read as under :-</p><p style="text-align: justify;">''The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 for 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 principles as it is realized that:-</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 pragmatic manner.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.' </p><p style="text-align: justify;">7. Apart from the fact that detail explanation showing vigilance and interest of the commandant to file an appeal, it is evident that the cause shown by him would be sufficient for condoning the delay. In case where the larger public interest is sought to be served by the condonation of delay, a more liberal approach has to be followed as per dicta of the Supreme Court in numerous decisions. In the case of Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors.? (2002) 3 SCC 195 their Lordships have recommended for adopting a liberal approach in cases where the delay is sought to be condoned by the State and the observations of their Lordships read as under:-</p><p style="text-align: justify;">'Thus it becomes plain that the expression 'sufficient cause' within the meaningof Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provisionshould receive a liberal construction so as to advance substantial justice when nonegligence or inaction or want of bona fides is imputable to a party. In a particularcase whether explanation furnished would constitute 'sufficient cause' or not will bedependent upon facts of each case. There cannot be a straitjacket formula foraccepting or rejecting explanation furnished for the delay caused in taking steps. Butone thing is clear that the courts should not proceed with the tendency of finding faultwith the cause shown and reject the petitioner by a slipshod order in over-jubilation ofdisposal drive. Acceptance of explanation furnished should be the rule and refusal, anexception, more so when no negligence or inaction or want of bona fides can beimputed to the defaulting party. On the other hand, while considering the matter thecourts should not lose sight of the fact that by not taking steps within the timeprescribed a valuable right has accrued to the other party which should not be lightlydefeated by condoning delay in a routine-like manner. However, by taking a pedanticand hypertechnical view of the matter the explanation furnished should not be rejectedwhen stakes are high and/or arguable points of facts and law are involved in the case,causing enormous loss and irreparable injury to the party against whom the listerminates, either by default or inaction and defeating valuable right of such a party tohave the decision on merit. While considering the matter, courts have to strike abalance between resultant effect of the order it is going to pass upon the parties eitherway.' </p><p style="text-align: justify;">8. Compelling reason for me to condone the delay in filing of the appeal by the defendant-petitioner is that the Commandant had not been impleaded as a party. The Commandant was a necessary as well as a proper party because it was the Commandant who has passed the order of dismissal of the plaintiff-respondent. The whole record of the case is with the Commandant who is the appointing authority of the plaintiff-respondent. It is understandable that in cases where the Government is the appointing authority, the State through the concerned department could be considered necessary and a proper party but in cases where an authority subordinate to the Government is the appointing authority and the orders have been passed by that authority, then such an authority would be necessary as well as proper party. The non impleadment of the Commandant is a factor which itself be sufficient to condone the delay in filing of the appeal. Still further right of one appeal is the rule in all jurisdiction as it has been universally accepted that to err is human and one review at least should be provided. In the present case even initially the defendant-petitioner has been proceeded ex pate. Therefore, the application filed by the defendant-petitioner under Section 5 of the Act for condonation of 127 days delay in filing of the appeal deserves to be accepted and the delay is liable to be condoned.</p><p style="text-align: justify;">9. The argument of the learned counsel for the plaintiff-respondent that defendant petitioner has a weak case on merits has not persuaded me to take the view that on that score alone, the delay should not be condoned because the question of merit can only be considered when the delay in filing of the appeal is condoned. Therefore, I do not find any substance in the aforementioned submission of the learned counsel for the plaintiff-respondent.</p><p style="text-align: justify;">10. For the reasons recorded above, this revision petition succeeds. The impugnedorder dated 6.10.2000 is set aside. The delay of 127 days in filing of the appeal is condoned. The District Judge, Hoshiarpur is directed to decide the appeal of the defendantpetitioner on merits. Parties through their counsel are directed to appear before the District Judge, Hoshiarpur on 23.10.2002.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '631716',
		'acts' => '<a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Sections 5; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Order 1, Rule 10',
		'appealno' => 'Civil Revision No. 3619 of 2001',
		'appellant' => 'State of Punjab',
		'authreffered' => '',
		'casename' => 'State of Punjab Vs. Ex. Constable Swaran Singh',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors.;',
		'citingcases' => '',
		'counselplain' => ' Lakhinder Singh, Addl. A.G.',
		'counseldef' => ' M.S. Lobana, Adv.',
		'court' => 'Punjab and Haryana',
		'court_type' => 'HC',
		'decidedon' => '2002-09-27',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.K. Kumar, J.',
		'judgement' => '<p style="text-align: justify;">M.M. Kumar, J.</p><p style="text-align: justify;">1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code') challenges order dated 6.10.2000 passed by the District Judge, Hoshiarpur dismissing an application of the defendant-petitioner in which prayer for condonation of delay in filing the appeal under Section 5 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> (for brevity, 'the Act') was made. As a consequence to the dismissal of the application, the appeal itself has been dismissed as time barred.</p><p style="text-align: justify;">2. In order to put the controversy in its proper perspective, it would be apposite tc make a reference to few facts. Plaintiff-respondent filed Civil Suit No. 285 of 1996 on 24.10.1996 seeking a declaration to the effect that order dated 6.12.1995 passed by the defendant-petitioner dismissing him from service is ultra vires, unconstitutional and against the principles of natural justice. A further relief of mandatory injunction was also prayed that the defendant-petitioner be directed to pay him arrears of his pay due to him and permit him to join his duties as constable. The suit of the plaintiff-respondent was decreed in his favour ex pare with consequential relief of mandatory injunction declaring the order dated 6.12.1995 as illegal, null, void and against the principles of natural justice. A further declaration was given in favour of the plaintiff-respondent that he continued in service as constable in the department and the defendant-petitioner was directed to. allow him to join the duties. Aggrieved against the impugned order, an appeal was filed by the defendant-petitioner before the District Judge, Hoshiarpur. Along with the appeal, an application under Section 5 of the Act seeking condonation of 127 days delay in filing the appeal was also moved. The application was contested by the plaintiff-respondent and an issue was framed to the effect as to whether there were sufficient grounds to condone the delay in filing of the appeal. The principal reasons pleaded in the application explaining the delay in filing of the appeal are that the Commandant, 9th Battalion, Punjab Armed Police, Amritsar (for brevity, 'the Commandant') who had passed the order dated 6.12.1995 uismissing the plaintiff-respondent Swaran Singh from service was not made party to the suit. The state of Punjab through the Secretary, Department, of Home, Government of Punjab was alone made a party. No summons were ever served through the Home Secretary on the Commandant. It has further been claimed that the Commandant came to know about the judgment and decree dated 25.11.1998 passed in favour of the plaintiff-respondent on 18.1.1999 when the plaintiff-respondent approached him to join his duties. Therefore, prayer was made for condonation of delay in filing of the appeal from 18.1.1999 to the date of the appeal because after the date of knowledge on 18.1.1999, the Commandant addressed a communication dated 22.1.1999 to the Additional Director General of Police, P.A.P., Jalandhar Cantt. seeking his legal opinion for taking further action in the matter. Mr. Joginder Pal, Assistant District Attorney, P.A.P. expressed the opinion that the judgment and decree dated 25.11.1998 could be challenged at that stage. Thereafter, the Commandant addressed communication dated 2.2.1999 to the Director General of Police, Punjab and requested him to approach the Legal Remembrancer-cum-Director, Prosecution and Litigation, Punjab, Chandigarh to issue necessary instructions to the District Attorney, Hoshiarpur to file an appeal against the aforementioned judgment and decree. Accordingly, the Director General of Police, Punjab requested the Director, Prosecution and Litigation, Punjab to send his opinion. The Government of Punjab accorded sanction to the Director, Prosecution and Litigation for defending the case on public expense and also to issue necessary instructions to the District Attorney, Hoshiarpur. One Mr. Sarwan Singh, Deputy Superintendent of Police. Head Constable Harinder Singh and Assistant Court Clerk of 9th Battalion, P.A.P., Amritsar were deputed to pursue the case in the office of Director General of Police, Punjab, Director, Prosecution and Litigation, Punjab and the Secretary to Government of Punjab, Department of Home. They attended their office on 24.2.1999, 25.2.1999, 11.3.1999 and 12.3.1999. On 21.3.1999, the Department of Home Affairs and Justice sent advice of the Director General of Police with instructions to file the appeal on behalf of the defendant-petitioner. A certified copy of the judgment and decree dated 25.11.1998 was applied by the District Attorney on 30.3.2000. Thereafter, the certified copy of the judgment and decree dated 25.11.1998 was sent along with his comments by the Assistant District Attorney to the District Attorney, Hoshiarpur on 9.4.1999 who considered the case and sent his opinion to the Director, Prosecution and Litigation, Punjab, The latter issued the instructions to the District Attorney, Hoshiarpur for filing the appeal on 4.5.1999 and then the District Attorney conveyed the Commandant on 7.5.1999 and the communication was received in the office of the Commandant on 22.5.1999 on which direction was issued to file the appeal and eventually the appeal was filed on 26.5.1999. On the basis of aforesaid averments made in the application, the delay of 127 days in filing the appeal has been sought to be condoned.</p><p style="text-align: justify;">3. The application filed by the defendant-petitioner was opposed by raising various objections. The plaintiff-respondent averred that there is long and unexplained delay in filing the appeal and only an application under Order IX Rule 13 of the Code for setting aside the ex parte judgment and decree was maintainable. The District Judge after framing an issue and recording of evidence dismissed the application by recording the following order:-</p><p style="text-align: justify;">'........the fact with regard to the passing of judgment and decree dated 25.11.98 passed by the Court of Sh. A.K. Mehta, the then learned Civil Judge Sr. Division.Dasuya, came to the notice and knowledge of the appellant State, at least on 18.1.99,when Sarwan Singh plaintiff-respondent went to the office of his employer with copyof the judgment, with a prayer that he may be allowed to join the duty as per thejudgment and decree of the Court. Then Ex.Al, copy of the opinion of the AssistantDistrict Attorney, shows that the matter was perused and legal opinion in the matterwas sought and then letter was written to the D.G.P. Punjab, Chandigarh copy ofwhich is Ex.A2, and thereafter the matter was also taken up with the Director,Prosecution and Litigation vide letter copy of which is Ex-A3 and thereafter the letterswere exchanged, copy of which are Exts-A4 and A5. Writing of letters by thefunctioning officials of Punjab State appellant itself, cannot be taken to be a sufficientground for condoning the delay in filing the appeal became that cannot amount toexplanation of each day's delay. Further, the statement of Sarwan Singh, DSP (AW1)shows that in his examination-in-chief he admits that the summons of the case inwhich the trial Court passed the judgment and decree in question, were received in theoffice of Home Secretary, Punjab Chandigarh on 7.8.88 and entry to that effect wasmade in the receipt register of that office and the summons were then marked to theconcerned Home-V Branch, but thereafter that summon was not traceable. This showsthat the appellant was duly served in the suit and the concerned department of theState of Punjab was seized of the matter, but it never wanted to contest the suit andallowed the suit to be proceeded against ex parte. This again convinces the court thatwhen the judgment and decree was passed against the appellant by the lower court,thereafter the officials of the concerned office of the appellant were not interested tofile the appeal in time. So there is intentional delay of 127 days in filing the appeal,for no reason and such delay cannot be condoned. There can be some extenuatingcircumstances justifying the condonation of delay under Section 5 of the LimitationAct, when the party is ignorant of his right, but such circumstances are not availableon the file of the appellant in the present case. The officials of the appellant were notabsolved of their duty to appeal within the period of limitation, simply because whenthe respondent with copy of the judgment and decree approached the department tojoin his duty, legal opinion in the matter was sought and certain letters wereexchanged within the department, because the officials/officers of the appellant mustbe knowing the legal implications of not filing the appeal in time. Ignorance of lawarising from not taking any legal advise or having taken legal advice but not pursuingthe same, or pursuing the same thinking that the Court will adopts a casual and liberalapproach in the matter, are not sufficient cases within the ambit of Section 5 of theLimitation Act.'</p><p style="text-align: justify;">4. Mr. Lakhinder Singh, Additional Advocate General, Punjab has argued that once the concerned department who has passed the order has not been impleaded as party, no knowledge of passing of judgment and decree could be imputed to that department. According to the learned counsel, even such a judgment and decree would not be binding on the department because it was not made party by the plaintiff-respondent. Learned counsel has further argued that delay of 127 days after the date of knowledge is also liable to be condoned because a close perusal of the averments made in the-application under Section 5 of the Act reveal that tremendous efforts have been made by the Commandant to get an appeal filed. Those efforts made by the Commandant would show that the defendant-petitioner could not considered to be negligent and lazy. On the contrary, they have to be considered as vigilant. Therefore, according to the learned counsel, the delay in filing the appeal deserves to be condoned.</p><p style="text-align: justify;">5. Mr. M.S. Lobana, learned counsel for the plaintiff-respondent has argued that writing of letters by one department to another would not constitute any legal basis for condonation of delay. According to the learned counsel, such inter departmental communications would not be covered by the expression 'sufficient cause' within the meaning of Section 5 of the Act which is a sine qua non for condoning the delay. Addressing on merits, the learned counsel has submitted that even otherwise, there is no substance in the appeal because the order of dismissal dated 6.12.1995 has been set aside by the Civil Judge on the ground that the principles of natural justice have not been followed. Therefore, the appeal is liable to be dismissed by the District Judge, even on merits.</p><p style="text-align: justify;">6. After hearing learned counsel for the parties. I am of the considered opinion that the order passed by the learned District Judge is not sustainable in the eyes of law. The approach of the learned District Judge requiring that every day's delay has to be explained is directly in conflict with the observations made by the Supreme Court in the case. 'Collector Land Acquisition', Anantnag and Anr. v. Mst. Ratiji and Ors. AIR 1987 SC 1353. The observations made by their Lordships in this regard read as under :-</p><p style="text-align: justify;">''The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 for 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 principles as it is realized that:-</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 pragmatic manner.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.' </p><p style="text-align: justify;">7. Apart from the fact that detail explanation showing vigilance and interest of the commandant to file an appeal, it is evident that the cause shown by him would be sufficient for condoning the delay. In case where the larger public interest is sought to be served by the condonation of delay, a more liberal approach has to be followed as per dicta of the Supreme Court in numerous decisions. In the case of Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors.? (2002) 3 SCC 195 their Lordships have recommended for adopting a liberal approach in cases where the delay is sought to be condoned by the State and the observations of their Lordships read as under:-</p><p style="text-align: justify;">'Thus it becomes plain that the expression 'sufficient cause' within the meaningof Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provisionshould receive a liberal construction so as to advance substantial justice when nonegligence or inaction or want of bona fides is imputable to a party. In a particularcase whether explanation furnished would constitute 'sufficient cause' or not will bedependent upon facts of each case. There cannot be a straitjacket formula foraccepting or rejecting explanation furnished for the delay caused in taking steps. Butone thing is clear that the courts should not proceed with the tendency of finding faultwith the cause shown and reject the petitioner by a slipshod order in over-jubilation ofdisposal drive. Acceptance of explanation furnished should be the rule and refusal, anexception, more so when no negligence or inaction or want of bona fides can beimputed to the defaulting party. On the other hand, while considering the matter thecourts should not lose sight of the fact that by not taking steps within the timeprescribed a valuable right has accrued to the other party which should not be lightlydefeated by condoning delay in a routine-like manner. However, by taking a pedanticand hypertechnical view of the matter the explanation furnished should not be rejectedwhen stakes are high and/or arguable points of facts and law are involved in the case,causing enormous loss and irreparable injury to the party against whom the listerminates, either by default or inaction and defeating valuable right of such a party tohave the decision on merit. While considering the matter, courts have to strike abalance between resultant effect of the order it is going to pass upon the parties eitherway.' </p><p style="text-align: justify;">8. Compelling reason for me to condone the delay in filing of the appeal by the defendant-petitioner is that the Commandant had not been impleaded as a party. The Commandant was a necessary as well as a proper party because it was the Commandant who has passed the order of dismissal of the plaintiff-respondent. The whole record of the case is with the Commandant who is the appointing authority of the plaintiff-respondent. It is understandable that in cases where the Government is the appointing authority, the State through the concerned department could be considered necessary and a proper party but in cases where an authority subordinate to the Government is the appointing authority and the orders have been passed by that authority, then such an authority would be necessary as well as proper party. The non impleadment of the Commandant is a factor which itself be sufficient to condone the delay in filing of the appeal. Still further right of one appeal is the rule in all jurisdiction as it has been universally accepted that to err is human and one review at least should be provided. In the present case even initially the defendant-petitioner has been proceeded ex pate. Therefore, the application filed by the defendant-petitioner under Section 5 of the Act for condonation of 127 days delay in filing of the appeal deserves to be accepted and the delay is liable to be condoned.</p><p style="text-align: justify;">9. The argument of the learned counsel for the plaintiff-respondent that defendant petitioner has a weak case on merits has not persuaded me to take the view that on that score alone, the delay should not be condoned because the question of merit can only be considered when the delay in filing of the appeal is condoned. Therefore, I do not find any substance in the aforementioned submission of the learned counsel for the plaintiff-respondent.</p><p style="text-align: justify;">10. For the reasons recorded above, this revision petition succeeds. The impugnedorder dated 6.10.2000 is set aside. The delay of 127 days in filing of the appeal is condoned. The District Judge, Hoshiarpur is directed to decide the appeal of the defendantpetitioner on merits. Parties through their counsel are directed to appear before the District Judge, Hoshiarpur on 23.10.2002.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 115 of the Code of Civil Procedure, Section 5, the Limitation Act, Section 5 of the Act, Section 5, Section 5 of theLimitation Act, Section 5, Section 5 of the Act, Section 5, the Indian Limitation Act, Section 5 of the Act, Order 22 Rule 9 of the Code, Section 5 of the Act

PERSON: M.M. Kumar, J.1, Hoshiarpur, Hoshiarpur, Swaran Singh, Commandant, Joginder Pal, Chandigarh, Hoshiarpur, Hoshiarpur, Sarwan Singh, Harinder Singh, Clerk, Amritsar, Hoshiarpur, Hoshiarpur, Commandant, A.K. Mehta, Dasuya, Sarwan Singh, Punjab Chandigarh, Lakhinder Singh, M.S. Lobana, Anr, Ram Nath Sao, Ram Nath Sahu, Gobardhan Sao, Hoshiarpur, Hoshiarpur

DATE: 1908, 1963, 1996, 127 days, 25.11.1998, 18.1.1999 to the date, 18.1.1999, 25.11.1998, 11.3.1999, 25.11.1998, 25.11.1998, 127 days, day, 127 days, 127 days, 1353, 1963, 2002, 127 days, 127 days, 23.10.2002

CARDINAL: 6.10.2000, 285, 24.10.1996, 18.1.1999, 22.1.1999, 2.2.1999, One, 24.2.1999, 25.2.1999, 12.3.1999, 21.3.1999, 30.3.2000, 4.5.1999, 22.5.1999, 26.5.1999, 13, 18.1.99,when, A5, one, 1, 7, 3, 8, one, one, 6.10.2000

LOC: the District Judge, the District Judge, the District Judge, the District Judge

ORG: Civil Suit, Commandant, Punjab Armed Police, Commandant, Department, Home, Government of Punjab, Home, Commandant, Commandant, P.A.P., Jalandhar Cantt, P.A.P., Commandant, Prosecution and Litigation, Prosecution and Litigation, The Government of Punjab, Prosecution and Litigation, 9th Battalion, P.A.P., Prosecution and Litigation, Government of Punjab, Department of Home, the Department of Home Affairs, Justice, Prosecution and Litigation, the Court of Sh, Civil Judge Sr. Division, State, Court, AssistantDistrict, Prosecution and Litigation, DSP, Court, Home, Home-V Branch, theState of Punjab, LimitationAct, Court, Additional Advocate General, Punjab, Commandant, Commandant, the Supreme Court, AIR 1987, Lordships, Court, Court, the Supreme Court, Lordships, State, Lordships, Commandant, Commandant, Commandant, Commandant, Government, State, Government, Commandant

ORDINAL: 9th, second

NORP: Punjab, Punjab, Punjab, Punjab State

PRODUCT: Order IX Rule

GPE: Sarwan, Singh