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Judgment
Vinod K. Sharma, J.—This regular second appeal is directed against the judgment and decree dated 31.10.1984, passed by the learned Addl. District Judge, Faridabad, vide which the appeal filed by the appellant against the judgment and decree passed by the learned trial Court was dismissed, as barred by limitation.
The respondent/plaintiff had filed a suit for permanent injunction restraining the appellant from interfering in possession of the plaintiff/appellant, from the tenanted premises, except by due process of law.
The suit was contested by the appellant by by taking a stand, that the plaintiff/respondent was not a tenant, but merely a licencee on payment of Teh Bazari, therefore, he could not seek injunction against his dispossession, as he had no right to continue on revocation of licence.
The learned trial Court on appreciation of evidence held, that plaintiff/respondent was able to prove his tenancy over the disputed premises, and decreed the suit.
The appellant preferred an appeal, which was time barred, however, no application for condonation of delay was moved. When it was pointed out by the respondent/plaintiff, that the appeal was barred by limitation, an application was moved, for condoning the delay of 4 days in filing the appeal.
The ground taken for condoning the delay was, that the concerned officer, who was to sign the appeal, was out of station, therefore, the file the appeal could not be filed within the period of limitation.
The learned lower appellate Court did not accept the explanation, for the reason, that the appellant failed to lead any evidence showing the leave of the officer concerned, or the details as to where he had gone. The explanation given was held not constitute sufficient ground for condoning the delay in filing the appeal. While dismissing the application for condonation of delay, the appeal was also ordered to be dismissed as time barred and decree was drawn.
The learned Counsel for the appellant contends, that this appeal raises the following substantial question of law for consideration:
Whether in absence of bona fide inaction or negligence, the application moved for condonation of delay of 4 days could be refused ?
Whether the explanation showing sufficient cause was to be given liberal interpretation especially in the case when appellant is State or a State Agency?
The learned Counsel for the appellant in support of the substantial questions of law vehemently contends, that it is now well settled law, that sufficient cause u/s 5 of the Limitation Act is to be liberally construed, in a manner which subserves the ends of justice.
It is also the contention of the learned Counsel for the appellant, that the appellant being an Agency of the State was entitled to certain latitude, as the strict principles as applicable to a private person could not be applied in case of State agency. The individual rights of the appellant are not affected, but public purpose suffers because of the lapse on the part of officers.
In support of this contention the learned Counsel for the appellant placed reliance on the judgment of the Hon''ble Supreme Court in the case of State of Nagaland Vs. Lipok AO and Others, .
Mr. O.P. Goyal, learned senior counsel for the respondent, however, vehemently contends that the learned lower appellate Court has exercised the discretion, on appreciation of evidence, which does not call for any interference by this Court in regular second appeal. Especially, when it was proved, that there was no bona fide, and the application moved on the face of it was mala fide and based on wrong facts.
On consideration, I find force in the contention raised by the learned Counsel for the appellant. Delay is merely of 4 days, which could not be said to be on account of mala fide or could be said to be lacking bona fide. The explanation given also was not such which was liable to be rejected. There was every possibility, that the delay of 4 days could have arisen for want of authority to sign the appeal. In view of the law laid down by the Hon''ble Supreme Court in the case of State of Nagaland v. Lipok AO and Ors. (supra) the substantial questions are answered in favour of the appellant. Consequently, this appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside. The case is remanded back to the learned lower appellate Court for disposal of appeal on merits in accordance with law.
The parties, through their counsel, are directed to appear before the learned lower appellate Court on 11.3.2010.