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CONDONATION OF DELAY= In the facts of this case it is clear that of all the three ladies, who were the appellants, one of them was pursuing the case and she fell sick. Therefore, she was not in a position to pursue the legal remedy with due diligence as a result of which the appeal was filed with a delay of 63 days. The delay of 63 days is not a delay for a long period and there has been some explanation for the delay. The High Court should have, before passing the impugned judgment, considered the explanation for the delay along with the facts of the case, the position of the parties, the nature of the litigation and the period of delay. The High Court should also have considered that it has been settled by a catena of cases that, unless the delay is gross, an explanation for the same should be liberally construed. It appears that the High Court has not been able to consider all these relevant facts in their correct perspective before passing the impugned order. 8

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 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.9059 OF 2011

 (Arising out of Special Leave Petition (C) 

 No.18191/2009)

 Poonam & others ...Appellant(s)

 - Versus -

 Harish Kumar and another ...Respondent(s)

 J U D G M E N T

 GANGULY, J.

 1. Leave granted.

 2. This civil appeal is directed against the order 

 dated 01.12.2008 of the High Court of Punjab 

 and Haryana at Chandigarh in Civil Revision 

 No.3745/2008, whereby the High Court declined 

 1

 to interfere with the order dated 27.07.2007 of 

 the District Judge, Ambala. By order dated 

 27.07.2007 the District Judge dismissed the 

 application for condonation of delay of 63 days 

 in filing the appeal against the judgment of 

 the trial court in Civil Suit No. 23/2003.

3. The facts and circumstances, which are relevant 

 to this appeal, are as under.

4. All the appellants no. 1 to 3 are sisters of 

 Respondent no. 1, who is their brother. The 

 father of the parties died on 17.01.2003 and 

 the mother had predeceased the father. Eight 

 daughters and one son survived their father. 

 The father during his lifetime arranged the 

 marriage of six daughters except the appellant 

 no. 1 & 2 herein.

5. In the year 2003, the appellants brought a suit 

 (CS no. 23 of 2003) before the Civil Judge, 

 2

 Ambala City for declaration of their title as 

 3/9th owner each, of the suit scheduled 

 properties and for permanent injunction 

 restraining the Respondent no.1 from 

 interfering with their peaceful possession and 

 creating any third party rights in the said 

 properties. According to the appellants-

 plaintiffs, the suit schedule properties were 

 their ancestral property in which plaintiffs 

 have got right by birth and all of them have 

 got equal shares in the same.

6. The Respondent no. 1 controverted the aforesaid 

 averment of the appellants-plaintiffs by 

 claiming that the suit schedule properties were 

 not ancestral but were self-acquired by their 

 deceased father. Further case of the Respondent 

 No.1 is that he is the absolute owner of the 

 said properties by virtue of a registered Will 

 dated 18.06.2002 executed by the deceased 

 father in his favour. 

 3

7. On the pleadings of the parties, the Trial 

 Court framed five issues. Thereafter the case 

 was adjourned for evidence of the appellants-

 plaintiffs. Despite several opportunities, the 

 appellants-plaintiffs allegedly led no 

 evidence. Since there was no evidence of the 

 plaintiffs on record, the Respondent no.1-

 defendant also did not lead any evidence.

8. By order dated 01.12.2006 the Trial Court 

 dismissed the suit filed by the appellants-

 plaintiffs with costs and accordingly a decree 

 was drawn up.

9. The appellants-plaintiffs challenged the 

 aforesaid judgment and decree by filing an 

 appeal before the District Judge, being Civil 

 Appeal No.12 of 2007. The appellants-plaintiffs 

 also filed an application for condonation of 

 delay of 63 days in filing the appeal by 

 4

 offering an explanation which can be summarized 

 as under:

 "That the appellant no. 2 and 3 were 

 married and illiterate. The appellant 

 no.1 was pursuing the case in the court. 

 During the pendency of the case, appellant 

 no.1 fell ill and therefore requested the 

 counsel to intimate to the appellants 

 regarding the position of proceedings. The 

 counsel assured that he will inform the 

 appellants as and when their presence is 

 needed in the court. But the counsel never 

 informed the appellants for giving their 

 evidence in court, which resulted in the 

 dismissal of the case on 1.12.2006. On 

 26.02.2007, someone from the locality 

 informed the appellants about the 

 dismissal of the case. Thereafter the 

 appellants rushed to the Court and applied 

 for a certified copy of the judgment and 

 then filed the appeal a little belatedly."

10. By order dated 27.07.2007, as noted above, the 

 District Judge dismissed the application for 

 condonation of delay on the ground that the 

 delay was not bona-fide and no reasonable cause 

 has been made out to condone the delay. 

 5

11. The reasoning of the District Judge for 

 reaching the above conclusion was that, (i) the 

 appellants are neither illiterate nor rustic 

 villagers as all of them had signed in English. 

 (ii) During the course of proceedings before 

 the trial court, the appellants were careless 

 and negligent.

12. Against this order the appellants preferred a 

 revision before the High Court.

13. By impugned order dated 01.12.2008 the High 

 Court dismissed the revision petition upholding 

 the order of the District Judge. The High Court 

 expressed the view that the delay of 63 days in 

 filing the appeal has not been properly 

 explained.

14. We cannot accept the view taken by the High 

 Court in the impugned judgment. When a Court 

 exercises its discretion in either condoning or 

 6

refusing to condone delay in filing any 

proceeding, the Court acts in exercise of its 

discretion. Normally, this Court in exercise 

of its discretion under Article 136 of the 

Constitution may not interfere with the 

exercise of discretion by the High Court in 

such matters. However, there is no strait-

jacket about this. The discretion of this 

Court under Article 136 of the Constitution is 

meant to further the ends of justice and this 

Court has been using its discretion in 

appropriate cases when it is satisfied that 

exercise of jurisdiction by the High Court or 

other Tribunals has not been on sound judicial 

principles. It is well settled that judicial 

discretion shall always be exercised "according 

to the rules of reason and justice and not 

according to private opinion" [See Sharpe Vs. 

Wakefield (1891 AC 193)]. 

 7

15. In the facts of this case it is clear that of 

 all the three ladies, who were the appellants, 

 one of them was pursuing the case and she fell 

 sick. Therefore, she was not in a position to 

 pursue the legal remedy with due diligence as a 

 result of which the appeal was filed with a 

 delay of 63 days. The delay of 63 days is not 

 a delay for a long period and there has been 

 some explanation for the delay. The High Court 

 should have, before passing the impugned 

 judgment, considered the explanation for the 

 delay along with the facts of the case, the 

 position of the parties, the nature of the 

 litigation and the period of delay. The High 

 Court should also have considered that it has 

 been settled by a catena of cases that, unless 

 the delay is gross, an explanation for the same 

 should be liberally construed. It appears that 

 the High Court has not been able to consider 

 all these relevant facts in their correct 

 perspective before passing the impugned order. 

 8

16. We, therefore, are constrained to set aside the 

 order of the High Court and condone the delay. 

 We direct that the appeal should be restored to 

 its file and the hearing of the appeal may 

 proceed as expeditiously as possible. 

17. However, nothing said in this judgment should 

 be considered as expression of opinion on the 

 merits of the controversy between the parties. 

 The appeal is allowed. There will be no order 

 as to costs. 

 .......................J.

 (ASOK KUMAR GANGULY)

 .......................J.

New Delhi (GYAN SUDHA MISRA)

November 03, 2011 9

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