( 1 ) THIS order will dispose of an application under Section 5 of the limitation Act for condonation of delay of 52 days in filing the Regular Second appeal against the judgment and decree dated 8. 4. 2004 Notice has already been issued in the main appeal by my learned predecessor.

( 2 ) I have heard Mr. S. P. Jha, Advocate learned counsel for the applicant and Mr. RLS Chaudhary Advocate learned counsel for the respondents.

( 3 ) IT is submitted by the learned counsel for the applicant-appellant that the applicant received certified copy of the judgment dated 8. 4. 2004 on 16. 4. 2004 The applicant approached her learned counsel for preparing the appeal but file was not traceable in the office of the learned counsel. During the month of June the courts remained closed and the staff of the Advocate was also not available therefore the applicant was told to come on 4th July, but the file could be traced only in the last week of August, 2004 and the present counsel took about 12-14 days to prepare the appeal. This caused a delay of 52 days. The application is supported with the affidavit of the applicant.

( 4 ) IN reply preliminary objections have been raised stating that affidavit of the earlier counsel was not filed. The names and addresses of the LRs of late ved Parkash Gupta were not written in the memorandum of appeal despite the fact that the same were written in the judgment under appeal. The copy of the application given to the respondents does not mention the number of days of delay. During arguments it was shown that the number of days of delay were mentioned only in the prayer clause in the copy supplied to the respondents. However in the original application the number of days of delay were written in hand in the application as well as in the prayer.

( 5 ) LEARNED counsel for the applicant has mainly argued that a party should not suffer because of lapse on the part of clerk of an Advocate, in tracing the file. As against this learned counsel for the respondents has reiterated the preliminary objections and has submitted that the applicant-appellant is trying to mislead the court and wants to grab the property of the deceased. Since only notice has been issued on the appeal, I would prefer not to go into the merits of the suit or the impugned judgments and the decrees.

( 6 ) LEARNED counsel for the applicant has cited the judgment titled "collector of Land Acquisition Vs. Katiji" reported in (1987) 2 SCC 107 wherein the Supreme Court has held as under :-

". . . . . It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that : 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 malafides. 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

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