S.S. Sandhu ORDER
Shriram R. Jagtap, Member (J)
(THROUGH VIDEO CONFERENCING)
1. Applicant, who is a promoter, has moved this application for condonation of delay of 36 days in filing appeal on the ground that due to surge of second wave of Covid-19 pandemic, staff of office of advocate of applicant got infected, as a result office of advocate was not accessible. Therefore, the applicant was unable to file appeal within time limit prescribed.
2. The respondent has filed reply to this application and resisted the application contending that the applicant has not offered plausible and satisfactory explanation for condonation of delay. The explanation offered by applicant is baseless and absurd. Besides the pre deposit as per proviso to Section 43(5) of RERA ought to be made by the applicant before the present application can be considered for disposal. The applicant has not given detailed account of staff of advocate of applicant who allegedly got infected by Covid 19. The applicant has not produced medical certificates of staff of advocate of applicant. The advocate of applicant could have engaged another clerk for filing appeal within the time limit prescribed. The non-applicant relied on the observations of Hon'ble Supreme Court in Civil Appeal No. 6974 of 2013 Basawaraj & Anr. and contended that application is to be decided only within the parameters laid down by the Hon'ble Supreme Court in regard to the condonation of delay. Lastly the non-applicant has prayed to reject the application with exemplary cost.
3. We have heard advocates appearing for respective parties. We have given thoughtful consideration to the submissions advanced by advocates appearing for respective parties. Only point that arises for our consideration is whether the applicant has established that applicant had sufficient cause for not preferring an appeal within limitation? To this our answer is in the affirmative for the reasons to follow.
4. The impugned order was passed on 3rd June, 2021. Period of limitation of 60 days would start running from the date of order. The period of limitation to file appeal has expired on 1st August, 2021. It is not in dispute that there was outbreak of pandemic Covid 19 in the State. A complete lockdown was announced by the Government. On 23rd March, 2020 the Hon'ble Supreme Court passed an order in Suo Motu Writ Petition (Civil) No. 3 of 2020 whereby the Hon'ble Supreme Court has extended period of limitation for filing petitions/applications/suits/appeals/all other proceedings in Courts/Tribunals across India with effect from 15th March, 2020 till further order. The Hon'ble Supreme Court, by order, has extended the period of limitation from time to time.
5. According to applicant, there was surge of second wave of Covid 19 pandemic. The staff of advocate of applicant got infected by Covid 19 and therefore the office of advocate was inaccessible. It is well settled principle of law that word "sufficient cause" should receive a liberal consideration so as to advance substantial justice, when delay is not on account of any dilatory tactics, want of bonafides, deliberate or negligence on the part of Applicant/Appellant. It has been held by the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, [MANU/SC/0460/1987 : (1987) 2 Supreme Court Cases 107, that:
"3. The legislature has conferred the power to condone delay by enacting Section 51 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 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 principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal."
6. On considering the ratio and dictum laid down by the Hon'ble Apex Court and the grounds put forth by the applicant, we are of the view that there were no dilatory tactics on the part of the applicant. The delay is not intentional one. Moreover, there is no material on record to show that applicant has malafidely preferred present appeal after the expiry of period of limitation. It is well settled that lis is to be decided on merits. Therefore, we are of the view that the applicant has established that applicant had sufficient cause for not preferring an appeal within the time limit prescribed. We, therefore, proceed to pass following order.
ORDER
1) Misc. Application No. 871 of 2021 is allowed.
2) Delay of 36 days is condoned.
3) No cost.
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