Condonation of delay under Section 5 Limitation Act requires full explanation of delay period; courts cannot decide collateral issues like service validity and must balance parties' vested rights.

JUDGMENT :

Ajay Mohan Goel, J.

By way this petition, the petitioner has assailed order dated 01.09.2023, passed by the learned Additional District Judge-II, Shimla in Case Reg. No. 9002926/2018, titled as Sh. Ram Tirath and another Vs. Shri Jagmohan Sood, in terms whereof, learned Court has allowed the application filed under Section 5 of the Limitation Act by condoning the delay in filing the appeal.

2. Brief facts necessary for the adjudication of this petition are that feeling aggrieved by order dated 17.03.2017, passed by learned Rent Controller, Shimla, H.P. in Rent Petition No. 27/2 of 2016, an appeal was preferred by the respondents herein alongwith an application under Section 5 of the Limitation Act for condonation of delay in filing the said appeal.

3. In terms of the averments made in the application, it was mentioned therein that the applicants/appellants came to know about the order passed by the learned Rent Controller on 09.07.2018 when a notice dated 03.07.2018, issued by Sh. Anirudh Nadda on the instructions of Sh. Jagmohan Sood was received by one of the applicants, i.e., Sh. Ram Tirath, whose name was wrongly mentioned as Tirath Ram. Thereafter, one of the applicants, namely, Jiwan Lal went to the District Court and applied for the copy of the eviction order passed against them on 10.07.2018. The copy was received on 18.07.2018. Wife of Ram Tirath suffered a heart attack on 16.07.2018 and was admitted in Alchemist Hospital at Panchkula, Haryana, from where she was discharged on 21.07.2018. On account thereof, the family of the applicants remained disturbed and it was only on 03.09.2018 that they visited the office of counsel and thereafter, the appeal was prepared and accordingly, a prayer was made that the delay in filing the appeal, which was of 34 days, be condoned.

4. Non-applicant opposed the application by filing reply and it was mentioned therein that the Rent Petition No. 24/2 of 2016, titled as Sh. Jagmohan Sood Vs. Tirath Ram and others was instituted on 06.04.2016 and decided on 17.03.2017. The respondents were duly served in the Rent Petition. After the eviction orders were passed by the learned Rent Controller on 17.03.2017, an Execution Petition was filed for recovery of possession. Pursuant thereof, the possession of the premises was delivered to the petitioner therein by the Court Bailiffs on 07.11.2017. As per the non- applicant, the appeal was filed just to harass and torment the non- applicant/respondent, as during the course of eviction and execution proceedings, the applicants had approached the non-applicant, i.e., the landlord and demanded money to vacate the premises. It was further averred in the reply that in execution proceedings, the possession of the property was taken over on 07.11.2017 and in this backdrop, the filing of the application was nothing but an abuse of the process of law. It was denied that the applicants came to know about the order passed by the learned Rent Controlled on 09.07.2018 only, as alleged.

5. In terms of the impugned order, the application was allowed by the learned Court below by holding that a perusal of the copy of the order demonstrated that the copy thereof was delivered to the respondent on 19.07.2018 and the appeal was filed with a delay of 34 days on 06.09.2018, which otherwise was to be filed on 18.08.2018. Learned Appellate Court further held that the applicants had examined one Anil Kumar as AW-1, who had produced the record to prove the plea of the wife of one the applicants having suffer