REPORTABLE      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,  

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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.   

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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  

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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.   

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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  

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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)].   

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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.  

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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

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