2023 INSC 651 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4628 OF 2023

(Arising out of SLP (C) No.27901/2015)

RAHEEM SHAH & ANR. APPELLANT(S)

VERSUS

GOVIND SINGH & ORS. RESPONDENT(S)

J U D G M E N T

Leave granted.

1.Heard learned counsel for the parties and perused the appeal

papers.

2.Respondent No.1 herein is the plaintiff in the original suit

bearing Civil Suit No.3 A/02. The suit was decreed by the trial

court through its judgment dated 01.10.2005. The appellants

herein who were the defendants No. 1 and 2 in the suit filed a

Regular First Appeal under Section 96 of the Civil Procedure Code

assailing the said judgment. Since there was delay of 52 days in

filing the appeal, an application under Section 5 of the

Limitation Act was filed seeking condonation of delay. The lower

Appellate Court through its judgment dated 08.10.2010 had

dismissed the appeal bearing Civil Appeal No.35A/2005 on the

ground of limitation holding that the delay has not been properly

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explained and had consequently dismissed the appeal. Against the

said judgment, the appellants were before the High Court of

Madhya Pradesh in a Second Appeal bearing No.1185/2010. The

Second Appeal has been dismissed by the High Court through its

judgment dated 16.04.2015 on the ground that there is no question

of law for consideration.

3.It is in that light, the appellants are before this Court in

this appeal. At the outset, having taken note that the

contention in the appeal before the lower Appellate Court was

that the judgment was not in the knowledge of the appellants

herein, that aspect of the matter was required to be kept in view

by the lower Appellate Court since the appellants in fact had not

taken effective part except filing written statement. When there

was delay of only 52 days in filing the appeal and furthermore

when the parties were litigating with regard to the right over

immovable properties, the substantial rights were to be decided

between the parties. The delay could have been condoned and the

appeal could have been decided on merits.

4.This Court in the case of Collector, Land Acquisition,

Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC

107 has held as hereunder:

“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

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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 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.”

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5. The above decision expressing the intention of justice

oriented approach percolating down to all the courts was rendered

nearly three decades ago but unfortunately the case on hand

demonstrates the pervading insensitive approach, which apart from

continuing the agony of the litigants concerned has also

unnecessarily burdened the judicial hierarchy which after going

through the entire process will have to set the clock back, at

this distant point in time and prolong their agony. If only the

court concerned had been sensitive to the justice oriented

approach rather than the iron- cast technical approach, the

litigation between the parties probably would have come to an end

much earlier after decision on the merits of their rival

contention.

6.If that be the position, the very manner in which the lower

Appellate Court has dismissed the appeal on the ground of delay

when the delay was not inordinate is not justified and the High

Court was also not justified in dismissing the appeal only on the

ground that there was no question of law.

7.Hence, the judgment dated 16.04.2015 passed by the High

Court as also the judgment dated 08.10.2010 passed by the lower

Appellate Court are set aside. The delay in filing the appeal

before the lower Appellate Court is condoned. The Civil Appeal

No. 35A/2005 is restored to the file of the lower Appellate

Court i.e. First Additional District Judge, Nasrullaganj,

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District Sehorr, M.P. The parties shall put forth their

contentions on merits. All contentions are left open.

8.The parties shall appear before the lower Appellate Court

without issuance of fresh notice/summons on 23.08.2023 at

11.00 A.M as the first date for appearance. The lower Appellate

Court may thereafter regulate its proceedings and dispose of the

matter as expeditiously as possible on its merits and in

accordance law.

9.The appeal is, accordingly, disposed of.

10.Pending application(s) shall also stand disposed of.

…………………………………………………………J.

[A.S. BOPANNA]

…………………….……………………………………….J.

[BELA M. TRIVEDI]

NEW DELHI;

JULY 24, 2023

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ITEM NO.64 COURT NO.7 SECTION IV-C

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (C) No.27901/2015

(Arising out of impugned final judgment and order dated 16-04-2015

in SA No. 1185/2010 passed by the High Court of M.P Principal Seat

at Jabalpur)

RAHEEM SHAH & ANR. Petitioner(s)

VERSUS

GOVIND SINGH & ORS. Respondent(s)

Date : 24-07-2023 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.S. BOPANNA

HON'BLE MS. JUSTICE BELA M. TRIVEDI

For Petitioner(s) Mr. Vikas Upadhyay, AOR

Mr. Nitin Gaur, Adv.

Mr. Kaustubh Anshuraj, Adv.

Mr. Kuber Boddh, Adv.

Mr. Arjun Singh Tomar, Adv.

Ms. Ankita Kashyap, Adv.

For Respondent(s) Mr. Abhishek Vikas, AOR

Mr. Anshuman Shrivastava, Adv.

Mr. Abhijeet Shrivastava, Adv.

Mr. Abhishek Sharma, Adv.

UPON hearing the counsel the Court made the following

O R D E R

Leave granted.

The appeal is disposed of in terms of signed reportable

judgment.

Pending application(s) shall also stand disposed of.

(RAJNI MUKHI) (DIPTI KHURANA)

COURT MASTER (SH) ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)

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