The discretion to condone delay under the Limitation Act is based on the explanation provided, not strictly on the length of the delay, emphasizing substantial justice over procedural technicalities.

JUDGMENT

Amit Bansal, J. (Oral)--The present petition under Article 227 of the Constitution of India impugns the order dated 23rd January, 2020 passed by the Court of Additional District Judge (ADJ), Dwarka Courts, Delhi in Civil Suit No.439/2019, whereby the application for condonation of delay filed on behalf of the respondent/defendant no.2, in respect of filing the memo of appearance, has been allowed subject to costs of Rs.10,000/-.

2. The facts in the present petition are not in dispute and are stated below:

2.1. The suit was filed by the petitioner/plaintiff for recovery in May 2019 under Order XXXVII of the Code of Civil Procedure, 1908 (CPC).

2.2. The summons were served on the respondent/defendant on 12th June, 2019 and thereafter, dates were fixed in the matter on 20th August, 2019, 19th October, 2019 and 5th December, 2019, when the counsel for the respondent/defendant no.2 appeared but did not file the memo of appearance.

2.3. On 5th December, 2019, the counsel for respondent/defendant no.2 submitted before the ADJ that he would move an application putting appearance of defendant no.2 and seeking condonation of delay in putting the appearance by 6th December, 2019. Though, same was opposed by the petitioner/plaintiff, in the interest of justice, one opportunity was granted by the ADJ.

2.4. Ultimately, the memo of appearance was filed only on 6th December, 2019 after a delay of 167 days.

3. The counsel for the petitioner/plaintiff contends that the no cogent or sufficient reasons have been stated in the application for condonation of delay filed on behalf of the respondent/defendant no.2 and therefore, delay should not have been condoned in the present case. He further submits that whole purpose for filing a summary suit under Order XXXVII of the CPC was defeated if such an ordinate delay is condoned.

4. The counsel for the respondent/defendant no.2 submits that, (i) upon receipt of summons on 12th June, 2019, the counsel was engaged by the respondent/defendant no.2; (ii) the respondent/defendant no.2 through counsel informed the petitioner/plaintiff of his appearance in the matter vide letter dated 20th June, 2019; (iii) the counsel for the respondent/defendant no.2 was regularly appearing in the suit, however, he did not file the memo of appearance, which is required to be filed in terms of Order XXXVII Rule 2(3) of the CPC; (iv) there is no lapse on behalf of the respondent/defendant no.2; and (v) as per the judgment of this Court in Babu Lal Yadav Vs. R.S. Yadav & Co. & Anr., ILR (2010) 4 Del 517, while condoning the delay, the length of delay is not relevant and the explanation offered for the delay has to be seen and in the present case, the words "sufficient cause" should receive liberal meaning.

5. It has been noted in the impugned order that the respondent/defendant no.2 had notified the factum of putting appearance to the petitioner/plaintiff but it was mere inadvertence or negligence of the counsel for respondent/defendant no.2 in not putting the appearance in the Court for which the respondent/defendant no.2 should not be made to suffer.

6. In the same vein, the counsel for the respondent/defendant no.2 has correctly placed reliance upon the judgment of this Court in Babu Lal Yadav (supra).

7. Reference may be made to paras 14 and 17 of the aforesaid judgment, which are set out below:

"14. It is trite that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act, 1963 does not prescribe that such a discretion can be exercised by the Court only if the delay is for a certain period of time, rather the length of delay is hardly relevant.