Jaswant Singh vs Amar Nath Mehra (since deceased) through his L.R.

Indermeet Kaur, J.—Admit.

The following substantial question of law is emanated:

Whether the finding in the impugned judgment dated 17.08.2010 dismissing the appeal of the Appellant/Defendant on the ground of limitation was a perverse finding and if so, its effect?

Present appeal has impugned the judgment and decree dated 17.08.2010 which had endorsed the finding of the trial Judge dated 15.12.2009 whereby the suit filed by the Plaintiff Amar Nath Mehra seeking possession of damages/mesne profits qua the suit property i.e. property No. 167, Jeewan Nagar, Gurudwara Bala Sahib Road, Ashram, New Delhi had been decreed in his favour.

The Plaintiff claimed himself to be the owner of the suit property. He had leased out this property to the Defendant who was an unauthorized occupant at a monthly rent of Rs. 100/- excluding water and electricity charges; the Defendant inspite of service had failed to appear before the trial court; he had been proceeded ex-parte. The said order had not been challenged. However, the Defendant had cross-examined the sole witness of the Plaintiff. The decree had followed in favour of the Plaintiff. Relief of possession had been granted to him along with the damages.

First appeal had been preferred. There was a delay of 81 days in preferring the first appeal. The impugned judgment had not gone into the merits of the case; it had held that the ''sufficient cause'' has not been explained by the Appellant in preferring the first appeal; he was not entitled to any relief; appeal had been dismissed; necessary corollary was that the decree of the trial Judge stood affirmed.

This is a second appeal. Learned Counsel for the Appellant has urged that the finding in the impugned judgment is illegal as the Court had failed to appreciate the detailed reasoning for not filing the appeal in time. The impugned judgment had noted that the delay in not filing the appeal in time had been imputed to the two counsel who had been appearing on behalf of the Defendant; the judgment of Ram Kumar Gupta v. Har Prasad 2010 ALL Ind. App. 58 had also been relied upon to substantiate his submission that a litigant should not be made to suffer for the negligence of his lawyer. The perusal of the impugned judgment shows that the Court had taken hyper technical approach in dismissing the appeal; provisions of Section 5 of the Limitation Act had not been appreciated in the correct perspective. This provision must be construed liberally so as to advance justice; no litigant should be thrown out at the threshold without affording him a fair opportunity of hearing. Delay as explained in the application filled u/s 5 of the Limitation Act before the appellate court merits consideration; sufficient cause has been made out. The impugned judgment returning a finding to the contrary is perverse.

The impugned judgment is accordingly set aside. The matter is remanded back to the District & Sessions Judge. The parties are directed to appear before the District & Sessions Judge, Tis Hazari Court on 16.05.2011 at 10:00 AM who shall assign the case to the concerned first appellate court who shall proceed to decide the case on its merits.

Appeal is disposed of in the above terms. Substantial question of law is answered in favour of the Appellant.