# Plaintiffs/ v. Veer Singh

- **Citation:** (2009) 3 ILRA 880
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009
- **Case number:** Civil Misc. Writ Petition No. 52549 of 2009
- **Bench:** Ran Vijay Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiffs-v-veer-singh-41553
- **Pages:** 4

## Headnote

Limitation Act, Section 5-Condonation of
delay-exparte decree passed-application
under order 9 Rule 13-rejected due to
non-appearance recall application duly
supported by affidavit-rejected as cause
of
non
appearance
not
properly
explained-Revisional Court allow the
revision-held-court
are
ment
for
imparting justice and not for raising
technicality-even if cause not properly
shown-considering the merit- Trail Court
ought to have Condon the delay-legal
fixation explained.

Held: Para 8

In view of the decision of the Apex Court
it
is
abundantly
clear
that
while
considering
the
delay
condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal.
The
courts
are
known
for
imparting justice and not to scuttle the
process of justice on technicalities. The
length of delay is also not very much
material if there is a substance on merit.
Further once the discretion has been
exercised in positive manner then it
should not be interfered with unless it is
perverse and based on no material.
Case law discussed:
( JT 1987 (1) SC 537 = 1987, JT 2000 (5) 389.

## Text

880 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Singh and another Vs. State of Bihar
and others, (2008) 1 SCC (Cri) 708 and
Kailash Vs. State of Rajasthan and
another, (2009) 1 SCC (Cri) 1006 for the
proposition that the powers under section
319 Cr.P.C. should be exercised sparingly
and the probability of conviction needs to
be assessed.

5. It is noteworthy that in the case of
Hardeep Singh Vs. State of Punjab and
others, 2009(1) JIC 362 (SC), the matter
has been referred to the Larger Bench
where the view taken in some decisions of
the Apex Court that probability of
conviction is required to be considered at
the stage when an order is passed under
section 319 Cr.P.C. has been questioned.

6. The revisionists, who are fatherin-law and mother-in-law of the deceased
are also residing in the same house, along
with already summoned accused Nafis
(husband of the deceased) where the dead
body of the deceased was found. The
cause of death, according to the postmortem report, was asphyxia as a result of
smothering.

7. As the death has taken place in
the house where the revisionists used to
reside, the onus lay on all the accused
persons, i.e. the two revisionists and Nafis
to explain as to how Smt. Sakir Jahan had
died in their house.

8. It has been held in Trimukh
Maroti Kirkan Vs. State of Maharashtra
(2007)1 SCC (Cri) 80 and Raj Kumar
Prasad Tamarkar Vs. State of Bihar,
(2007) 10 SCC 433 that when the death
takes place inside the house, the burden is
cast on the accused to explain in view of
section 106 of the Evidence Act as to how
the person has died in the house.
9. In such circumstances, it is not
very material if some doubts are cast
about whether the witness has been able
to establish that he was an eyewitness of
the incident. Also under section 319
Cr.P.C., it has basically to be seen from
the evidence where a person not being an
accused could be tried with another for an
offence "which he appears to have
committed." The section requires nothing
more.

10. I, therefore, find no illegality in
the impugned order.

The
revision
is
accordingly
dismissed.

11. However, it is provided that if
the revisionists appear before the court
concerned in pursuance of the aforesaid
order and apply for bail, within three
weeks their prayer for bail shall be heard
and
disposed
of
expeditiously
in
accordance with the decision of Full
Bench of this Court in Amrawati and
another Vs. State of UP, 2004 (57) ALR
290.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 14.10.2009

BEFORE
THE HON'BLE RAN VIJAY SINGH, J.

Civil Misc. Writ Petition No. 52549 of 2009

Rajpat Singh and others

 ...Plaintiffs/Petitioners
Versus
Veer Singh

...Respondents

Counsel for the Petitioner:
Sri Ramendra Asthana

Counsel for the Respondents:
3 All] Rajpat Singh and others V. Veer Singh
881
Limitation Act, Section 5-Condonation of
delay-exparte decree passed-application
under order 9 Rule 13-rejected due to
non-appearance recall application duly
supported by affidavit-rejected as cause
of
non
appearance
not
properly
explained-Revisional Court allow the
revision-held-court
are
ment
for
imparting justice and not for raising
technicality-even if cause not properly
shown-considering the merit- Trail Court
ought to have Condon the delay-legal
fixation explained.

Held: Para 8

In view of the decision of the Apex Court
it
is
abundantly
clear
that
while
considering
the
delay
condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal.
The
courts
are
known
for
imparting justice and not to scuttle the
process of justice on technicalities. The
length of delay is also not very much
material if there is a substance on merit.
Further once the discretion has been
exercised in positive manner then it
should not be interfered with unless it is
perverse and based on no material.
Case law discussed:
( JT 1987 (1) SC 537 = 1987, JT 2000 (5) 389.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. This writ petition has been filed
against the judgment and order dated
4.7.2009 passed by learned Additional
District Judge, Court No. 2 Agra in Civil
Revision No. 27 of 2008, Sri Rajpat Singh
and others Vs. Sri Veer Singh.

2. Sri Ramendra Asthana, learned
counsel for the petitioners while assailing
the impugned order has submitted that the
impugned order is totally illegal as the
learned
judge
while
allowing
the
Revision, on the one hand has observed
that there is no sufficient explanation for
condonation of delay and on the other
hand has condoned the delay and allowed
the Revision and set aside the order dated
30.11.2007
by
which
the
defendant/respondents' recall application
was rejected as barred by time.

3. I have heard learned counsel for
the petitioners.

The facts giving rise to this case are
that the petitioners/plaintiffs have filed
suit seeking permanent injunction. This
suit was decreed exparte on 25.9.2004.
Thereafter the defendant/respondent has
filed an application under Order 9 Rule 13
of the Code of Civil Procedure stating the
reason for non appearance before the
Court. This application was rejected on
20.5.2009. For recall of the said order an
application was filed in April 2006 along
with an application under Section 5 of the
Indian
Limitation
Act.
The
said
application was rejected by the trial court
on 30th November, 2007 on the ground
that the delay has not been properly
explained.
Against
that,
the
defendant/respondent has filed Revision
which has been allowed by the impugned
order.

Sri
Ramendra
Asthana,
learned
counsel for the petitioner has submitted
that the trial court has rejected the
application for condonation of delay on
the cogent reasons and the revisional
court has found that there was no proper
explanation for condonation of delay even
then condoned the delay, therefore, the
court erred in law in allowing the
Revision and condoning the delay in
filing the application for setting aside the
exparte decree.
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
5. The law relating to the delay
condonation has been dealt with by the
Apex Court in numerous cases. The Apex
Court in the case of Collector, Land
Acquisition, Anantnag & Anr. Vs. Mst.
Katiji & Ors. ( JT 1987 (1) SC 537 =
1987
(2) SCR 387) has given following
guidelines while dealing with the delay
condonation application :-
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."

6. Again the Apex Court in the case
of State of Bihar and others Vs.
Kameshwar Singh and others reported in
JT 2000 (5) 389 after considering various
cases of the Apex Court on condonation
of delay application has held :

Para 12............ " The expression
'sufficient cause' should, therefore, be
considered with pragmatism in justiceoriented process approach rather than the
technical detention of sufficient case for
explaining every day's delay. The factors
which are peculiar to and characteristic
of the functioning of pragmatic approach
in justice -oriented process. The court
should decide the matters on merits unless
the case is hopelessly without merit. No
separate standards to determine the cause
laid by the State vis-a-vis private litigant
could be laid to prove strict standards of
sufficient cause".
Para 13............. " It is axiomatic that
condonation of delay is a matter of
discretion of the court. Section 5 of the
Limitation Act does not say that such
discretion can be exercised only if the
delay is within a certain limit. Length of
delay is no matter,acceptability of the
explanation
is
the
only
criterion.
Sometimes delay of the shortest range
may be uncondonable due to want of
acceptable explanation whereas in certain
other cases, delay of a very long range
can be condoned as the explanation
thereof is satisfactory. Once the court
accepts the explanation as sufficient, it is
the
result
of
positive
exercise
of
discretion and normally the superior
court should not disturb such finding,
much less in revisional jurisdiction,
unless the exercise of discretion was on
3 All] Constable 289 CP Tahsildar Singh and others V. State of U.P. and others
883
wholly untenable grounds or arbitrary or
perverse. But it is a different matter when
the first court refuses to condone the
delay. In such cases, the superior court
would be free to consider the cause shown
for the delay afresh and it is open to such
superior court to come to its own finding
even untrammelled by the conclusion of
the lower court".

7. This view has further been
affirmed by the Apex Court in the case of
Gangadeep Pratisthan Private Ltd. and
others Vs. Messrs. Mechano and others
reported in A.I.R. 2005 Supreme Court
Page 1958

8. In view of the decision of the
Apex Court it is abundantly clear that
while considering the delay condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal. The courts are known for
imparting justice and not to scuttle the
process of justice on technicalities. The
length of delay is also not very much
material if there is a substance on merit.
Further once the discretion has been
exercised in positive manner then it
should not be interfered with unless it is
perverse and based on no material.

9. Here in the present case, the
Revisional court has condoned the delay
in the interest of justice holding it that
even
if
there
was
no
satisfactory
explanation to the condonation of delay
even then the Justice demand to condone
the delay.

I do not wish to interfere with the
impugned order.

10. The writ petition lacks merit and
it is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED ALLAHABAD 15.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 51998 of 2009

Constable 289 CP Tahsildar Singh and
others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri C.B. Yadav
Sri Nisheeth Yadav

Counsel for the Respondents:

Constitution
of
India,
Article
226Transfer-Petitioner
one
working
as
Police Constable for the last 10 yearstransfer challenged on ground colorable
exercise of power-being prejudice with
concern
particular
cost-held-wholly
misconceived-without giving complete
particulars-collecting Transfer Order of
particular cost can not be basis for
interferes-No malafide allegation madepersonal hardship can be considered by
higher authorities and not by writ courtpetition dismissed.

Held: Para 56

Besides, the petitioners have also not
placed relevant material on record to
show as to what is strength of the police
force in the State of U.P., what is the
strength of the members of police force
belong to the caste to which the
petitioners belong etc. In the absence of
adequate relevant on vague pleading, in
my view, such a serious issue ought not
to have been raised and it would not
appropriate for this Court to adjudicate
the same.