WRIT PETITION 8 of 2006 on 30 June 2001

ORDER

A.P. Subba

Since all the above Miscellaneous Applications ariseout of similar facts and raise identical questions of law, they wereheard together and are being disposed of by this common order.

All the above applications have been filed by one ShriR. K. Goyel, resident of Jorthang, South Sikkim and two (2) othersu/s 5 of the Limitation Act,1963, for condonation of delay of 510days in filing appeals under Order XLI Rule 1 of the Code of CivilProcedure for setting aside the ex parte decrees dated 15.12.2003passed by the learned District Judge, Special Division - 11 atGangtok in Civil Suit Nos.5, 6, 7, 8, 9 and 10 of 2002.

lt is not necessary to narrate facts of the case in detailfor the purpose of disposing of the present applications. Suffice itto say that the Civil Suits Nos.1 of 1992, 2 of 1992, 3 of 1992, 4 of1992, 5 of 1992 and 6 of 1992 filed by each of the Respondentsseparately in the Court of the Ld. Civil Judge, (E) at Gangtok, fordeclaration that he was a government employee and not privateemployee of Sikkim Food Preservation Factory, Singtam, underthe management of the Applicants/Appellants at the relevant time,that the letter of appointment issued by the Applicants/Appellants

\ ' was bad in law and liableto be set aside and that he was entitledto the payment of the difference of salary for the period between2.7.1987 to 23.6.1995, was decreed on 19.6.1998. Appeal Nos.7 of 2002, 8 of 2002, 9 of 2002,10 of 29002,11 of 2002 and 12 of2002 preferred by the Applicants/Appellants before learned DistrictJudge (E&N) at Gangtok were dismissed vide judgment dated18.09.1999 and the decrees passed by the learned trial Courtwere duly confirmed. The Second Appeal Nos. 2 of 1999, 3 of1999, 4 of 1999, 5 of 1999, 6 of 1999 and 7 of 1999 preferredbefore this High Court, impugning the above orders, also came tobe dismissed. After the Second Appeals were dismissed by thisCourt, the Applicants/Appellants moved the Hon'ble SupremeCourt. However, all the Special Leave Petitions met with the samefate. After the SLPs were dismissed, the plaintiffs/Respondentsput the decree in execution in the Court of the Ld. Civil Judge,East at Gangtok. However, the executing Court dismissed all theexecution petitions on 30.6.2001 on the ground that the decreesbeing declaratory in nature were incapable of execution and theplaintiffs/Respondents might file separate suits for the reliefsclaimed in the execution petition. Writ Petition Nos. 46 of 2001, 47of 2001, 48 of 2001, 49 of 2001, 50 of 2001 and 51 of 2001 filedby the Plaintiffs/Respondents thereafter before this High Courtunder Article 226 of the Constitution seeking certain directions tothe State, were disposed of with some directions holding that theHigh Court was not the appropriate forum for the reliefs prayed for.

1'

'After the Writ Petitions were disposed of, thePlaintiffs/Respondents instituted fresh money suits in the Court ofLd. District Judge, Special Div,lI, East at Gangtok in the year 2002seeking the same reliefs which were sought in the Writ Petitionand the execution petition. The said money suits were decreed exparte on 5.12.2003 on default of the Applicants/Appellants toappear and to contest the suits. Against these ex parte decrees,the Applicants/Appellants moved applications under Order IX Rule13 CPC for setting aside the same. However, the said applicationswere rejected by the learned District Judge, Special .Division 11after hearing on 15.9.2004. Thereafter, neither theApplicants/Appellants filed any appeal against the ex parte decreenor the decrees were put into execution for over one year, (1 year2 months and 14 days to be precise). The Applicants/Appellantscame to know of the execution petitions having been filed againstthem only when notices of the same were served on them on7.2.2006. The appeals were then filed on 3.3.2006 along with thepresent applications for condonatjon of delay of 510 days.

ln support of the prayer for condonation of delay, it isstated that the main reason for the delay in filing the appeals wasthe terminal illness of the mother of the Applicant /Appellant No.1,lt is stated that she was admitted in Paramount Hospital Pvt. Ltd.at Siliguri and was under treatment there from the month ofSeptember 2003 till she breathed her last on 23.12.2003. It was \_

because of the said long illness and death of the mother of theApplicant /Appellant No.1 that he could not remain in touch withhis Counsel for taking effective steps to defend the suit. It isfurther stated that the Applicant /Appellant No.1 being the eldestmale member of the family, was confined to Siliguri for performingthe last death rituals of the deceased mother, which lasted till thefirst week of January 2004. It was only after the completion of thelast death rituals in the month of January 2004, that the Applicant/Appellant No.1 was free to take effective steps to defend the suit.However, to his ill luck, the suits were decreed ex parte in themeantime. When he contacted his Counsel in the first week ofJanuary 2004 for taking steps in this regard, it came to his noticethat the Courts in Sikkim had been closed for winter vacation from2nd January to 2nd February 2004 and his Counsel opined thatthe limitation would not run during the closure of the Courts, andaccordingly, he waited till the reopening of the courts for filingthe necessary applications for setting aside the ex partedecrees. But when the Applicant /Appellant No.1 reached theDistrict Court to present the applications on 2nd February 2004,he came to know that even though the Courts were closed forwinter vacation, the offices were open and on coming to know ofthis, he filed the said applications for setting aside the ex partedecree along with applications for condonation of delay.These applications were rejected by the Ld. District Judge,Special Div.Il vide orders passed on 15.9.2004. In the meantime, the Applicants/Appellants No.1's only brother took ill with highblood pressure, sugar, pancreatitis, urea, etc. and had to beurgently shifted to Chennai for better management. Such illnessof his brother and his treatment in a hospital located away fromSikkim, rendered the Applicant /Appellant No.1 helpless and beingunder the pressure of such adverse circumstances, he had toremain out of touch with his Counsel, thereby losing total track ofthe case. Over and above, the bona fide mistake committed byhis Counsel on the question of period of limitation during theperiod of closure of the Courts also added to the delay. Hence, itwas prayed that the delay might be condoned in filing the presentAppeals.

In the replies filed by the Respondents, it was deniedthat the grounds mentioned by the Applicants/Appellants weresufficient cause within the meaning of See.5 of the Limitation Act.It was contended that the Applicants/Appellants had beennegligent from the very beginning of the matter causing undueharassment to the Respondents. In view of such negligence, theApplicants/Appellants themselves were to be blamed for the delayin the case. It was also contended that the orders dated15.9.2004 were not ex parte orders, in so far as, the same werepassed in presence of the learned Counsel for theApplicants/Appellants. It was also contended that theApplicants/Appellants filed the present appeal only after the

Respondents put the decree in execution, which goes to show thatit has been filed only with a view to avoid the payment of decretaldues, Accordingly, it was prayed that all the applications forcondonation of delay may be rejected with exemplary cost.

At this stage, it is pertinent to mention that theApplicants/Appellants in the rejoinder affidavits filed by them inreply to the objections filed by the Respondents, raised furtherground stating that the whole litigation was being looked after bythe younger brother of Mr. Ratan Kumar Goyel and other agentsengaged by him including the officers and staff connected withFood and General Industries Pvt. Ltd. The Appellant/ApplicantNo.1 having full faith in his brother did not feel the necessity ofpaying any personal attention to the matters. However, inNovember 2004 the brothers fell out with each other over certainpersonal disputes. Until this time, the Applicant/Appellant No.1was confident that the whole affair was being looked after andmanaged properly by his brother and the Advocates engaged byhim. However, such trust reposed by him on his brother wasshattered when he came to know about the true state of affairs onreceiving the show cause notices issued by the executing Courtfor attachment of his personal bank account and his personalproperties on 7.2.2006. The Applicant/Appellant No.1 thencontacted the lawyer who was in charge of the litigation and 1'

initiated proper steps to prefer appeals and finally filed the presentAppeals on 2.3.2006.

7. The contention raised by Mr. N. Rai, the learnedCounsel for the Respondents in this regard, is that, these groundshaving not been taken in the original condonation applicationsearlier filed along with the applications under Order lx Rule 13CPC were nothing more than after thoughts and cannot be takeninto consideration.

Mr. Ashok Banerjee, learned Senior Counsel assistedby Mr. S. Majumdar and Mrs. L. Chakraborty, learned Counselappearing on behalf of the Applicants/Appellants and Mr. N. Rai,learned Counsel assisted by Miss Jyoti Kharka, learned Counselappearing on behalf of the Respondents were heard.

Mr. Ashok Banerjee, learned Senior Counsel submittedthat even though there was long delay in filing the Appeals, thedelay was caused by circumstances beyond the control of theApplicants/ Appellants. There was, according to him, no lack ofdiligence on the part of the Applicants/Appellants in pursuing theircase. Over and above, it was also submitted by him that theAppeals filed by him raised arguable and important points of law,and in view of this, the cause shown by the Applicants/Appellantswere sufficient cause for condonation of delay as prayed for. Onthe other hand, Shri N. Rai submitted that the inordinate delay inthe filing of the present appeals was entirely due to negligence ' and the lack of diligence on the part of the Applicants/Appellants,and, as such, no case has been made out for allowing the prayerfor condonation of delay.

10. The short question that arises for consideration in allthese matters is, whether the causes shown by theApplicants/Appellants for delay, coupled with the additional groundthat the Appeal raises important questions of law can be acceptedas a sufficient cause within the meaning of See.5 of the LimitationAct, and if so, whether the delay of 510 days can be condoned inthe circumstances of the case.

11. Before proceeding to take up the above question, itwould be relevant to note that the main grounds that have beentaken in the present application are more or less the same as theones already taken in the applications for condonation of delayearlier filed along with the applications under Order IX Rule 13CPC in the Court of the Ld, District Judge, Special Division 11,East at Gangtok. It might be recalled that the said Court had videorder dated 15.9.2004, rejected the said applications for settingaside the ex parte decrees along with the applications forcondonation of delay. It might also be recalled that theApplicants/Appellants did not choose to prefer any appeal againstthe said order rej.ecting the application for setting aside the exparte decree. The present appeal is one filed under Order XLIRule 1 CPC.

12. ln support of the above remedy chosen by him by wayof Appeal under Order XLI RI CPC instead of usual appealagainst the order passed under Order lx Rule 13, the learned Sr.Counsel submitted that a defendant who has been proceeded exparte has been given number of options under the Code and theoptions being concurrent, he could go for any of the options. Thelearned Counsel placed reliance on the decision of the SupremeCourt .in Bhanu Kumar Jain vs. Arehana Kumar & Another/2005/ 7 SCC 787. Based on the decision the learned counselsubmitted that a defendant in such case can file an applicationunder Order lx Rule 13 CPC or prefer an appeal against the exparte decree under See. 96 (2) of the Code or file a review or eveninstitute a suit on the ground of fraud. All these remedies whichare available to the Applicants/Appellants are concurrent,submitted the learned Counsel. It is his further submission that thedifferent remedies can be availed of at the same time or one afteranother, except that in the event of an Appeal filed u/S 96 (2) CPCbeing dismissed, the defendant cannot fall back upon theprovisions of Order IX Rule 13 CPC.of Appeal under Order XLI RI CPC instead of usual appealagainst the order passed under Order lx Rule 13, the learned Sr.Counsel submitted that a defendant who has been proceeded exparte has been given number of options under the Code and theoptions being concurrent, he could go for any of the options. Thelearned Counsel placed reliance on the decision of the SupremeCourt .in Bhanu Kumar Jain vs. Arehana Kumar & Another/2005/ 7 SCC 787. Based on the decision the learned counselsubmitted that a defendant in such case can file an applicationunder Order lx Rule 13 CPC or prefer an appeal against the exparte decree under See. 96 (2) of the Code or file a review or eveninstitute a suit on the ground of fraud. All these remedies whichare available to the Applicants/Appellants are concurrent,submitted the learned Counsel. It is his further submission that thedifferent remedies can be availed of at the same time or one afteranother, except that in the event of an Appeal filed u/S 96 (2) CPCbeing dismissed, the defendant cannot fall back upon theprovisions of Order IX Rule 13 CPC.

13. A perusal of the above decision goes to show that thelearned Counsel is well supported by the law laid down therein, inso far as, it has been clearly observed that a party whoseapplication under Order lx Rule 13 CPC for setting aside the exparte decree has been rejected, has number of options, an appeal ' u/s 96 (2) of the Code being one of such options. It is thesubmission of the learned Counsel that he has chosen the optionof filing an appeal u/S 96 (2) CPC so that he need not confinehimself to the grounds which were already taken in the applicationunder Order lx Rule 13 CPC. There can be no doubt that thepresent Appeal being an Appeal filed u/S 96 Clause (2), thegrounds available to the Appellant are wider than the groundswhich would have been available to the Appellant if he hadpreferred an Appeal against the order rejecting his applicationunder Order lx Rule 13 CPC. Thus, no fault can be found with thefiling of the present appeal.

14. This brings us to the question of sufficiency orotherwise of the cause shown. In this regard, it may be noted thatthe causes put forward by the Applicants/Appellants range fromterminal illness of the mother of the Applicants/Appellantsultimately resulting in her death in a hospital in Siliguri, WestBengal, followed by performance of elaborate death rituals toillness of the Applicants/Appellants himself and his brother whowas looking after the litigation in question on behalf of theApplicants/Appellants. The different causes also include thefalling out of the Applicants/Appellants with his brother afterNovember 2004. The question is, whether the above causes canbe taken as sufficient cause within the meaning of Section 5 of theLimitation Act. Admittedly, the present Appeals have been filed

• after a delay of 510 days. It was contended by Mr. N. Rai, thelearned Counsel for the Respondents that the Appellants have notexplained every day's delay in the condonation of delayapplication. It is true that the grounds of delay mentioned abovedo not amount to explanation of each and every day's delay. It is,however, settled law that the doctrine "every day's delay must beexplained" does not mean that it should be an explanationcovering every hour's delay or for that matter every second'sdelay. As per the law laid down by the Hon'ble Supreme Court inCollector, Land Acquisition, Anantnag & Another vs. Nlst.Katiifi & Others -AIR 1987 SC 1353, the doctr.ine .`every day'sdelay must be explained" does not mean that a pedantic approachshould be made. The doctrine must be applied in a rationalcommon sense pragmatic manner. It is relevant to quote thefollowing observation made by the Apex Court in the above case :- "1. Ordinarily a litigant does not stand to benefit by lodgingan appeal late.an appeal late.

2. Refusing to condone delay can result in a meritoriousmatter being thrown out at the very threshold andcause of j.ustice being defeated. As against this whendelay is condoned the highest that can happen is thatcause would be decided on merits after hearing theparties.matter being thrown out at the very threshold andcause of j.ustice being defeated. As against this whendelay is condoned the highest that can happen is thatcause would be decided on merits after hearing theparties.

3. `Everv dav's delay must be exDlained' does not meanthat a Dedantic aoDroach should be made. \/Vhv noteverv hour's delay. every second's delav? Thedoctrine must be aDDlied in a rational common senseDraamatic manner.that a Dedantic aoDroach should be made. \/Vhv noteverv hour's delay. every second's delav? Thedoctrine must be aDDlied in a rational common senseDraamatic manner.

4. When substantial justice and technical considerationsare pitted against each other, cause of substantialjustice deserves to be preferred for the other sideare pitted against each other, cause of substantialjustice deserves to be preferred for the other side cannot claim to have vested right in injustice beingdone because of nonrdeliberate delay.

5. There is no DresumDtion that delav is occasioneddeliberatelv or on account Of oulDable nealiaence. oron account Of mala fides. A litiaant does not stand tobenefit bv resortina to delav. In fact he runs a seriousrisk.

6. It must be grasped that iudiciarv is respected not onaccount of its Dovver to leaalLze iniustice on technicalarounds but because it is capable of removina injusticeand is ex ected to do so." ( emphasis supplied ).

15. lt is thus clear that the explanation put forward in anapplication for condonation of delay need not cover every day,every hour or every second's delay. The doctrine, as held abovehas to be applied in a rational common sense pragmatic manner.

16. Further, it is by now the settled principle of law thatwhile considering the question of condonation of delay a referenceto the merits of the Appeal would be desirable. In Ram Wath Saovs. Gobardhan Sao reported in AIR 2002 SC 1201 the A\pexCourt has observed as follows:- "Acceotance of explanation furnished is the rule and refusalan 6xceDtion more so when no nealiaence or inaction orwant of bena fide can be imputed to the defaultina Dartv..... However. bv takina a Dedantic and hvDer technicalview of the matter the exolanation furnished shouid not berejected when stakes are high and/or arouable points offacts and law are involved in the case. causina enormousloss and irreparable iniurv to the Dartv aaainst whom the listerminates either bv default or inaction and defeatinavaluable riaht of such a oartv to have the decision on merits.( emphasis supplied ).

The observation made by the Rajasthan High Court in UrbanImprovement Trust vs. Poonam Chand AIR 1997 Rajasthan 734 deserves mention in this regard. The relevant observation isas follows:- "19. Now it must be taken to be well settled principleof law that before rejecting applications under Section5 of the Indian Limitation Act and dismissing appealsas barred by lapse of time, the Courts of law arerequired to put a alance as a condition Precedent onthe merits Of the aDDeals and unless the aDDeals arefound to be hoDelessiv devoid of merits ordinarilyefforts should be made to decide the aDDeals onmerits." ( emphasis supplied ).

17. The above view finds full support from the law laiddown by the Hon'ble Supreme Court in the recent decisionrendered .in Divisional Manager plantation Division Andaman &Nicobar vs. Munna Barrack & Others AIR 2005 SCW 109wherein it has been observed that where serious questions of laware raised in the Appeal, the Court should take a liberal view onthe application for condonation of delay.

18. It is, therefore, well settled by now that the explanationput forward in the application for condonation of delay should beconsidered along with the merits of the Appeal and if seriouspoints of law are prima facie found to have been raised in theAppeal, the application for condonation of delay is not to be lightlybrushed aside taking into account only the length of delay in thematter. A reference to the merits of the Appeal for the limitedpurpose of ascertaining whether arguable points of law have beenraised would invariably be desirable for advancing the cause of substantial justice while considering the question of condonation ofdelay u/Sec. 5 of the Limitation Act.

19. We may, therefore, glance through the relevantpleading to ascertain if the Appeals raise any serious question oflaw. A perusal of the memorandum of appeal along with theaccompanying annexures, would go to show that the Plaintiffs/Respondents in the first suits filed before the Court of Ld. CivilJudge, East, sought for declaration that they were governmentemployees under the Government of Sikkim, that their status asgovernment servants could not be unilaterally changed at the willof the Defendant/Applicants/Appellants, that the letter ofappointment issued by the Appellants was liable to be set aside,that they are entitled to get salary and allowances at par with othergovernment servants and that they will be entitled to claim thedifference of salary for the period from 2.7.1987 to 23.6.1995. Itappears that, the Plaintiffs/Respondents in the said suits onlyclaimed the above declaration and did not claim the consequentialrelief of recovery of difference of salary in the same suit contraryto the provisions of Order 11 Rule 2 CPC. The plea regarding non-compliance of Order 2 Rule 2 CPC taken by theApplicants/Appellants was duly incorporated in issue No.2 whichreads as follows :- "2. "Whether the instant suit is hit by the provisions ofOrder 11 Rule 2 of the Code of Civil Procedure."Order 11 Rule 2 of the Code of Civil Procedure."

20. Further, it is seen that the trial Court has not returned any finding on the above issue while disposing of the suits exparte. The impugned orders show that two other issues along withthe above issues were also not decided. While refraining fromgiving any decision on these three issues, the learned Courtsimply observed that these three issues did not crop up during thetrial, since the said Defendants were proceeded ex parte. Thethree issues are as follows :- lssuES

"1. Whether the claim of the plaintiff is barred by the Lawof Limitation?of Limitation?

2. Whether the instant suit is hit by the provisions ofOrder 2 Rule 2 of the Code of Civil Procedure?Order 2 Rule 2 of the Code of Civil Procedure?

3. Whether the plaintiff was compelled to join under thedefendant?defendant?

'

Paragraph 6 of the impugned judgments which deals with theabove issues states as follows :- "The Defendants having been proceeded ex parte,these issues did not crop up during trial."

21. lt is the case of the Applicants/Appellants that OrderXIV Rule 2 CPC mandates Court to pronounce judgment on all theissues subject to the provisions of sub-rule (2). However, in thepresent case, the learned Court failed to comply with the abovespecific provision. Thus, it is clear that the Applicants/Appellantshave raised the following three legal issues of importance :- Bar of limitation.

Non-compliance with the provisions of Order 11 Rule2 by the Respondents in their pleadings in the suit.2 by the Respondents in their pleadings in the suit.

Non-compliance with the provisions of Order XIVCPC Rule 2 by the learned trial Court.CPC Rule 2 by the learned trial Court.

Relying on the decision of the Hon'ble Supreme Court in Sfafe ofM.P. vs. State of Maharashtra (1997) 2 SCC 288, M/S BengalWaterproof Ltd. and Another vs. M/S Bombay WaterproofManufacturing Co. & Another AIR 1997 SC 1398, Smt. PhulpatiDevi & Another vs. Parmeshwar Rai & Others AIR 1981 Patna77, Kunjan Nair Sivaraman Nair vs. Narayanan Nair & OthersA/R 2004 SC 7767 and few other decisions, the learned Counselfor the Respondents contended particularly in regard to issue No.2above that the Defendants in order to raise the plea of Bar ofOrder 2 Rule 2 CPC must file in evidence the pleadings of theprevious suit and since it was not done, the provisions containedin Or.2 R2 CPC was no bar. Even if it were so, it was hiscontention that the Respondents have obtained the required leavefrom the Executing Court.

22. While the above decisions cited by the learnedCounsel do go to show that filing of the pleadings of the previoussuit in evidence is a requirement for raising the issue of non-compliance of Order 2 Rule 2 CPC, we cannot loose sight of thefact that the Respondents had allegedly failed to seek theconsequential relief of recovery of the difference of salary in thesuits filed by them before the Court of learned Civil Judge. The a ' , only contention soughtto be raised by the learned counsel fortheRespondents, is that, a Plaintiff under the provisions of sub-rule (3)of Order 2 Rule 2 CPC can file a separate suit later, even on therelinquished portion of the claim, if he has taken the leave of theCourt in the earlier suit. In the present case, it was his submissionthat such leave had been granted for filing a separate suit by theexecuting Court while disposing of the execution petition and therequirement of obtaining leave stands complied with.

23. It is clear from the above that the issues that havebeen raised in the Appeals are pertinent, in so far as they raise theissue of non-compliance with the mandatory provisions of lawapplicable to the case. The question, however, is whether theseissues, which touch upon the merits of the case, can be taken intoconsideration in an application u/S. 5 of the Limitation Act. It isamply clear from the decision already cited above, that it is nowwell settled that a reference to the merits of the case, so as to findout as to whether any serious questions of law is involved in theAppeal, can be made while disposing of an application forcondonation of delay.

24. One more decision cited on the point by Mr. Banerjee,the learned Senior Counsel, is a Division Bench decision of thisCourt rendered .in Principal Secretary, Transport Department, Government Of Sikkim, Gangtok vs. Smt. Narmaya Das - CivilMi.sc,App/fcafi.on IVo.6 of 2004 decided on 7th June, 2005. In thiscase, a Division Bench of this Court, relying on several decisions of the Apex Court and High Courts held that, in consideringapplication for condonation of delay, merits of the Appeal can belooked into keeping in view the object underlying Sec.5 of theLimitation Act which is to enable the Court to do substantial justice.Paragraph 12 of the said Order which is relied on by the learnedCounsel is as follows:- "12 Further, it also becomes clear from the abovethat where arguable points of facts and law areinvolved the explanation furnished should not bebrushed aside taking hyper technical view of thematter. It is indeed well-established that merits ofthe case may also be taken into consideration inexcusing the delay.that where arguable points of facts and law areinvolved the explanation furnished should not bebrushed aside taking hyper technical view of thematter. It is indeed well-established that merits ofthe case may also be taken into consideration inexcusing the delay.

The submission of Mr. Rai in regard to applicability of the above Division Bench decision to the case in hand is that, it does notapply to it. The main ground advanced by the learned Counselsupporting his objection are that, in the above Division Benchcase, an important point as to whether a gazetted officer can betreated as "workman" under the provisions of Wowh7en'sCompensafi.on Act 7923 was involved, whereas in the presentcase, no such important point is involved. In the second place, itwas pointed out that the Appellant in the said case, before theDivision Bench, was a government department, and such beingthe case some latitude was extended to it, which cannot be donein the present case, as because the Appellant js a private party. Inthe third place, it was pointed out that the decision of the DivisionBench was based on substantial justice, and as a consequence ofwhich the delay was condoned, but in the present case, the ends of substantial justice would be met if the application forcondonation of delay is rejected.

25. There is no doubt that the above aspects of the matterwere taken into consideration by the Division Bench while decidingthe question of condonation of delay. However, what was held bythe Division Bench, as already noted above, being that, merit ofthe case can also be looked into when arguable points of law areraised in the case, it would be wrong to say that the decisionwould apply only when the Appellant is government department oronly when the question of substantial justice arises. For thisreason, the contention of Mr. Rai that the Division Bench decisiondoes not apply to the facts of the present case cannot becountenanced.

One additional ground taken by the learned Counsel isthat the Division Bench in the above stated case only relied on theold dec.is.ior\ Of the Apex Court in Collector, Land AcquisitionAnantnag & Anr. vs. Mst. Katilfi & Ors. reported in AIR 1987SC 7553 without taking note of the later decision on the point. It ishis contention that the Apex Curt in the later decision rendered inP. K. Ramachandran vs. State of Kerala & Another -AIR 1998SC 2276 has laid down that the law of limitation is to be appliedwith its full rigour prescribed by the statute and Courts have nopower to extend limitation on equitable grounds. In view of thislater decision, it is his submission that the Division Bench decisioncannot be followed. There is no doubt that the above later ir decision referred to by the learned Counsel lays down that the lawof limitation has to be applied with its rigour prescribed by thestatute but we cannot loose sight of the fact that the aboveobservation was made by the Apex Court in a case where delaywas condoned by the High Court without recording satisfactionthat the explanation for delay was either reasonable orsatisfactory. The decision, therefore, cannot be taken as layingdown that delay cannot be condoned on any account or thatmerits of the Appeals can never be looked into while consideringcondonation applications. The still later decisions rendered by theApex Court .in Ramnath Sao vs. Gobardhan Sao AIR 2002 SC1201 (supra) and .ln Divisional Manager, plantation Division,Andaman and Nicobar Islands vs. Munnu Barrick and Ors.raporfed i.n A/R 2005 SOW 709 already cited hereinbefore makeit amply clear that the explanations furnished in condonationapplications should not be rej.ected taking a hyper technical viewof the matter when stakes are high and/or arguable points of factsand law are involved in the case. Thus, the submission made bythe learned Counsel on this account cannot be considered ashaving any merit.

26. The above decisions, therefore, make it amply clearthat where serious questions of law are raised, the Court shouldtake a liberal view on the application for condonation of delay.

27. Now coming to the length of delay involved in thepresent case, it may be recalled that there has been a delay of

• 510 days. The submission of learned Counsel for theRespondents in this regard, is that, such a long delay cannot becondoned. This submission, to say the least, runs counter to theguidelines laid down by the different decisions. It has been held incatena of decisions that quantum of delay has no direct nexus withthe sufficiency of cause. In this regard I find it sufficient to refer tothe maliorirty v.lew .in Nlunicipal Corporation of Ahmedabad vs.Voltas Ltd. and eto. reported in AIR 1995 Guifarat 29 whiich .ispertinent. The view is asfollows:-

"Whether the delay is for a short period or a longperiod is of no consequence. If sufficient cause isshown long delay can be condoned and if no cause isshown even delay for a short period may not becondoned."

28. lt is thus clear that a reference to the merits of the casewhile considering the question of condonation of delay would notbe out of place and where it is found that arguable points of factsand law are involved in the Appeal, the explanation furnishedshould not be brushed aside taking hyper technical view of thematter.

29. We have already come to the conclusion above thatthe Appeal raises arguable points of law, which need to beadjudicated by the Court in the interest of justice. Thus, on aconsideration of the facts and circumstances of the case in thelight of the legal position as highlighted above, this Court is of theopinion that the cause shown by the Applicants/Appellants taken together with the important legal points raised in the Appeal makeout a case for condonation of the delay as prayed for and thesame must be allowed.

30. Accordingly, all the six applications for condonation ofdelay are hereby allowed subject, however, to payment ofRs5000/- (Rupees Five Thousand) only, as cost to theRespondents in each of the above applications.

( A. P. Subba )Judge