D.N Joshi, J.:— This revision is directed against the order dated 18.12.2000 passed by the learned Additional District Judge, Bhinmal in Civil Misc. case No. 53/99 “Municipal Board, Sanchore v. Jai Kishan”, whereby the application under Order 41 Rule 19 read with Sec. 151 CPC has been accepted and the appeal was re-admitted for hearing on its original number.
2. Heard learned counsel for both the parties and perused the impugned order dated 18.12.2000
3. Civil Appeal (decree) No. 5/1992 Executive Officer, Sanchore v. Jai Kishan was presented in the court of District and Sessions Judge, Jalore and it was dismissed in default on 28.10.1993 The Municipal Board, Sanchore moved an application under Order 41, Rule 19 C.P.C on 30.10.98 to restore the same. It was argued by the learned counsel for the petitioners-revisionist that the appeal was restored without showing sufficient cause after five years of its dismissal, therefore, the learned Appellate Court was not within its jurisdiction to re-admit the appeal dismissed in default as stated above.
4. Per contra, learned counsel for the respondents Shri R.K Mehta argued that there was sufficient cause for re-admitting the appeal for hearing. It was further argued that the learned Appellate Court held an inquiry and the Municipal Board produced witnesses P.W 1 Shanker Lal and PW. 2 Babulal in support of its application for re-admitting the appeal for showing sufficient cause. There was no rebuttal of the evidence of the appellant. It was further argued that the learned counsel for the Municipal Board did not inform the Board about its dismissal of the appeal and the Advocate has left the practice. Therefore, no jurisdictional error has been committed in passing the impugned order by the Additional District Judge, Bhinmal.
5. It Appears that the appeal of the Municipal Board was dismissed under Order 41 Rule 17 CPC. As per provisions of Order 41 Rule 19, where an appeal is dismissed under Rule 11, the appellant may apply to the Appellate court for re-admission of the appeal concerned; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
6. Section 5 of the Limitation Act, 1963 provides that any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring an appeal or making the application within such period.
7. As per provisions of the Limitation Act, it gives the Court a discretion in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles: the words “sufficient cause” receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona-fides is imputable to the appellant. This discretion like other judicial discretions must be exercised with vigilance and circumspection according to justice, common sense and sound judgment. Delay cannot be excused as a matter of “judicial generosity” in any case. Its object is to advance substantial justice. It must not be exercised in any arbitrary, vague or fanciful manner. The discretion is to know through law what is just. Proof of sufficient cause is a condition precedent for the exercise of the discretionary power. If it is not proved the Court has no choice and the application for condonation has to be dismissed on that ground alone. The discretion may be exercised against a person even if sufficient cause it shown. The Court should strike a just balance between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellant of his grievance on the merits of his appeal for cause beyond his control. The true guide for a Court in the exercise of its discretion in excusing the delay in presenting an appeal or application is whether the appellant or applicant has acted with reasonable diligence in presenting his appeal or application.
8. A genuine mistake made by a lawyer, though somewhat negligent will ordinarily be regarded as sufficient cause. Mistake advice given by a lower negligently and without due care is not a sufficient cause. Due care and attention is not synonymous with omniscience and if a counsel is no honestly in the know of a certain authority, he cannot be held guilty of neligence. The negligence of an advocate to inform the litigant to come in person to present an appeal is sufficient cause. Where delay in filing the appeal has been caused on account of mistake by counsel or his office, the delay should be condoned. Party should not suffer for delay attributable to the party himself.
9. In State of West Bengal v. Administrator, Howrah Municipality (1), the Hon'ble Supreme Court has observed that the expression “sufficient cause” in Sec. 5 o the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation of justice and not to defeat it.
10. In N. Balakrishnan v. M. Krishnamurthy. (2), the Hon'ble Apex Court has held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay.
11. In N. Balakrishnan v. M. Krishnamurthy. (supra), the Hon'ble Supreme Court has held held as under:—
“In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction.”
12. In this background, it is to be seen whether the Municipal Board has shown sufficient cause for re-admitting the appeal. The cause alleged by the Municipal Board was that his counsel did not inform about the dismissal of the appeal for non-appearance and when the petitioners started illegal construction on the land of the Municipal Board, the Board came to know about the dismissal of the appeal for non-appearance. Thereafter, the Board applied for certified copies, which was received on 22.09.1998 The Municipal board produced two witnesses, but there was no rebuttal of the evidence of the Board in this regard. Therefore, in the opinion of the Court, sufficient cause was shown for re-admitting of the appeal. The party cannot be penalised for the fault or mistake by his counsel. It may be that the Advocate for the Board was somewhat negligent, but that too cannot be a ground for giving relief to the Board or refusing to do substantial justice to either of the parties. In the application u/Sec. 5 of the Limitation Act filed by the Municipal Board sufficient cause has been shown for re-admitting the appeal. In this view of the matter, the learned Additional District Judge, Bhinmal has exercised its discretion in a judicial manner to condone the delay in re-admitting the appeal on its original number. The court has exercised its powers vested in it and it cannot be said that any jurisdictional error has been committed by it. Therefore, no fault can be found in the impugned order and there are no good and valid reasons to interfere with it. It also cannot be said that if this order is allowed to stand, there would be a failure of justice. It is not the delay that is decisive to decide the application u/Sec. 5 of the Limitation Act, but the sufficient cause has been shown by the party for re-admitting the appeal. Hence, the revision petition is liable to be dismissed and is hereby dismissed.
13. As the main revision petition has been dismissed, the stay application also stand dismissed.