The power to condone delay is meant to enable substantial justice.

Tarlok Singh Chauhan, Judge (Oral). The appellants-applicants have filed the present application under Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act with a prayer for recalling the order dated 20.10.2008 and with the further prayer to restore the appeal to its original number and hearing the same on merits.

2.It has been averred therein that the appeal had been listed before this Court on 20.10.2008 when the Court had granted the appellants last opportunity to get served the respondent No.1(d) subject to cost of ‘400/-. In the event of non-taking of steps, the appeal was ordered to be dismissed for want of prosecution without any reference to Court.

3.It is alleged that the applicants are illiterate, rustic villagers and no letters intimating this fact were received from the counsel, though when they contacted the counsel, they were shown dispatch numbers of these letters. It is alleged that probably the respondents, who are head-strong persons may have connivance with the postman manipulated the affairs in not allowing these letters to reach the appellants/applicants. Recently, the respondents had proclaimed that the appeal of the applicants stood dismissed and it is then that the applicants contacted their counsel and on inspection of the file, they acquired knowledge regarding the order dated 20.10.2008.

4.It is further alleged that the appeal has been dismissed for want of taking steps for the service of respondent No.1(d), who was one Swaru. It is further stated that, infact, Shri Swaru’s name had been wrongly mentioned in the application at Page No.73 of the file as otherwise he is not the legal representative of Smt. Chepri Devi. It is lastly stated that there was communication gap between the applicants and the counsel because infact the name of legal representative No.1(d) was required to be deleted and, in such a situation, there was no negligence on the part of the applicants to prosecute the appeal.

5.The respondents, on the other hand, have filed reply wherein, in the preliminary submissions, they have alleged that the applicants have been grossly negligent in not pursuing the case. Repeated opportunities had been granted to the applicants to take steps for the service of legal representative of respondent No.1, Chepri Devi, particularly, respondent No.1(d) Swaru in CMP No.367 of 2006, however, the applicants did not appear before the Additional Registrar on 03.09.2008 and 18.08.2008 and despite notices to this effect no steps had been taken till 20.10.2008 when final opportunity subject to cost was granted to the applicants. It is submitted that the present application has been filed in August, 2013 after gross and inordinate delay. It is denied that all the legal representatives of deceased respondent No.1, Chepri Devi, are represented pursuant to an application to this effect. The respondents have further claimed that there is no just cause for recalling the order or setting aside the order, more particularly, when the same was passed nearly five years back and have accordingly prayed for dismissal of the application.

6.I have heard learned counsel for the parties and gone through the records of the case. Without going into factual matrix of the case, whether all the legal representatives of Chepri were already on record or not, I proceed to decide the application on its merits. No doubt, the appellants had committed default, but the fact nonetheless remains that they had some explanation to offer which explanation, infact, has not been denied by the respondents in their reply. What infact has been stated in the application and in reply thereto has been reproduced by me in paragraph-5 supra. In such circumstances, when there appears to be a case of communication gap as alleged by the applicants, it would be too harsh not to recall the order dated 20.10.2008 and restore the appeal to its original number and hear it on merits.

7.It is settled law that procedure is h