Procedural laws are subservient to substantive law, and the conduct of a party in prosecuting a remedy needs to be assessed for condonation of delay.

Manmohan, J.

.1. C.M. No. 16567/2006 (Condonation of delay).

.By the present application the petitioner have sought condonation of delay under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the C.P.C).

2. The petitioners herein had filed a suit under Section 6 of the Specific Relief Act, 1963, against the Respondents. However, the plaint was rejected under Order 7 Rule 11(a) of C.P.C. The said order was challenged by way of an appeal by the petitioners. In the said appeal, a preliminary objection was taken by the Respondents to its maintainability on the ground that no appeal was maintainable by virtue of Section 6(3) of the Specific Relief Act. The said objection was overruled by the Appellate Court vide its order dated 24th October, 2005.

.3. On a petition being CM(M) 2834-39/2005 filed by the Respondents, learned Single Judge of this Court was pleased to allow the said petition vide order dated 9th November, 2006 holding that the Petitioners appeal was not maintainable and the remedy, if any, was by filing a title suit or a revision under Section 115 of the CPC. The operative portion of learned Single Judges order is reproduced hereinbelow for ready reference:

.1l. In view of the aforesaid position, the impugned order cannot be sustained and is set aside. It is held that the appeal filed by the respondents was not maintainable and the remedy of the respondents was only by filing a title suit or revision under Section 115 of the said Code. It will thus be now for the respondents to take recourse to the appropriate legal remedy in accordance with law aggrieved by the impugned order of the trial Court dated 13.4.2004.

4. Mr. Sharma, learned Counsel for the Respondents submits that in the present instance the delay could not be condoned inasmuch as the petitioners had prosecuted their appeal despite the Respondents taking a preliminary objection at the earliest that the said appeal was not maintainable. In this connection, learned Counsel for Respondents relied upon the following Judgments:

(A) Rabindra Nath Samuel Dawsan v. Sivakami and Ors.: AIR 1972 SC 730 wherein it has been held as under:

4. ...The reasons given by the High Court are in our view cogent. Section 14 of the repealed Limitation Act which is applicable to this case gives benefit to a party who has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of first appeal against the defendant, where the prosecuting is founded upon the same cause of action and is prosecuted in good faith in a court which from the defect of jurisdiction or other cause of like nature is unable to entertain it. The appellants Advocate points out that under Section 2(7) nothing shall be deemed to be done in good faith which is not done with due care and attention and that in this case appellant was bona fide in purchasing the suit properties from an auction purchaser who also purchased them in revenue sales bona fide and that without notice to either of them the sale has been set aside which is totally without jurisdiction and injuriously affects the appellant. That the appellant was caught in this predicament may be unfortunate but insofar as the question whether he bona fide prosecuted the earlier suit and appeal there could be no two opinions on the undisputed facts which have been clearly and forcefully stated by the High Court. It is clear that no suit for declaration and possession could have been filed against the defendants in respect of the revenue sales which was set aside without impleading the Government. The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the Distt. Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proc