The main legal point established in the judgment is that delay condonation is a matter of discretion, and the acceptability of the explanation for the delay is the key criterion. The court emphasized the distinction between inordinate delay and delay of short duration, and the importance of considering the conduct and negligence of the party and its counsel.

JUDGMENT

Sandeep Sharma, J. - Being aggrieved and dissatisfied with order dated 17.06.2017, passed by learned Civil Judge, Chamba, District Chamba, H.P., whereby two applications having been filed by the petitioner (hereinafter referred to as the ''plaintiff'') under Order 9 Rule 4 CPC and under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the application under Order 9 Rule 4 CPC, came to be dismissed, plaintiff has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to quash and set aside the aforesaid order and to allow the application for setting aside the order of "dismissed in default" after condoning the delay and decide the suit on merits.

2. Having heard learned counsel representing the parties and perused the material available on record vis-a- vis reasoning assigned by the learned Court below while passing the impugned order, this Court finds that suit for declaration and permanent prohibitory injunction having been filed by the plaintiff was fixed for hearing on 2.12.2015. Since on 2.12.2015, none appeared on behalf of the plaintiff in the learned Court below, her suit was dismissed in default for non prosecution and non-appearance.

3. Plaintiff with a view to get the order of "dismissed in default" passed against her quashed and set- aside, preferred an application under Order 9 Rule 4 CPC (available at Page 23 of the paper book) after delay of more than two months i.e. somewhere in March, 2016. Since prescribed period for moving application for getting the ex- parte order set-aside had expired, plaintiff also preferred an application under Section 5 of the Limitation Act ( available at Page 28 of the paper book), praying therein for condonation of delay in moving the application under Order 9 Rule 4 CPC. Learned Court below vide common order dated 17.6.2017, dismissed both the applications. In the aforesaid background, plaintiff has approached this Court in the instant proceedings.

4. Careful perusal of both the applications filed by the plaintiff, persuade this Court to agree with the contention of learned counsel representing the respondents that since no plausible explanation is/was rendered on behalf of the plaintiff qua the delay in moving the appropriate application, praying therein for condonation of delay in moving application under order 9 Rule 4 CPC, learned Court below rightly dismissed both the applications. Otherwise also, careful perusal of the applications referred hereinabove, clearly suggest that though plaintiff claimed before the learned Court below that on the given date i.e. 2.12.2015, she was bed ridden and was ill, but no documentary evidence is/ was adduced on record to substantiate her aforesaid claim. Similarly, there is/was no specific averment with regard to instructions, if any, given by her to counsel to remain present on her behalf on the given date. Though, this Court finds no illegality and infirmity in the impugned order, which otherwise appears to be based upon the proper appreciation of facts as well as law, but having taken note of the fact that plaintiff had engaged lawyer on her behalf and it was his duty to remain present on her behalf in the court on the given date, this Court is of the view that Court below should have not taken hyper technical view. Otherwise also, litigant cannot be allowed to suffer for the lapse, if any, committed by the lawyer.

5. No doubt, averments contained in the applications are vague, but same have been drafted by the counsel, not by the litigant. It is/ was the duty of the lawyer to properly advise her client to place on record necessary documents, if any required to substantiate his/her claim, but in the case at hand it is quite apparent that plaintiff was not properly advised and as such, she could not be allowed to suffer for the fault, if any, committed by her lawyer.

6. Repeatedly, it has been held by the Hon''ble Apex Court as well as this Court