Courts must grant opportunity to file condonation application under Section 5 Limitation Act for short delays in restoration of suits dismissed in default, avoiding hyper-technical dismissals to prioritize ends of justice over procedural rigidity.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has, inter alia, prayed for the following relief:-

“It is, therefore, prayed that petition may very kindly be allowed and the order dated 17.12.2022 passed by learned Additional District Judge-II, Kangra at Dharamshala, in Civil Misc. Appeal no. D/XIV/21/2018, titled as Prince Vs Mastan Singh and 4-others and order passed by learned Civil Judge, Sr.Division, Dehra, Kangra, in CMA No. 256/2015 in Civil Suit No. 106/2010, may kindly be quashed and set aside or the Hon'ble Court may please to pass any such or further order which the Hon'ble Court may deem just and proper on any terms and conditions in the interest of justice and fair play.”

2. The petitioner is aggrieved by order dated 18.02.2016 (Annexure P-5) passed by the learned Trial Court, in terms whereof, an application filed by the petitioner to re-call order dated 21.09.2013, in terms whereof, the Civil Suit filed by him was dismissed in default, was dismissed and also judgment dated 17.12.2022 ( Annexure P-6), passed by the learned Appellate Court, in terms whereof, the appeal filed by the petitioner against the dismissal of his application was also dismissed.

3. Brief facts necessary for the adjudication of this petition are that a Civil Suit filed by the petitioner was dismissed in default on 21.09.2013. For the restoration of the same, he filed an application on 03.11.2013. Admittedly, this application was filed beyond limitation and no application under Section 5 of the Limitation Act was filed alongwith the same for condonation of delay. The reasons given in the application was that the absence of the learned Counsel before the Court was bonafide as the date of listing of the case was erroneously recorded as 30.09.2013 instead of 21.09.2013 and when subsequently the party came to know about the dismissal of the case, immediately the application was filed for restoration of the order.

4. Learned Trial Court in terms of order dated 18.02.2016 dismissed the application by observing that there was no convincing reason furnished in the application for non appearance of the parties on 21.09.2013 and that the application was also not filed within the period of limitation. Learned Trial Court also held that as the case was dismissed on 21.09.2013, the application ought to have been filed within 30 days as from the said date and as the application was filed beyond 30 days and there was no application for condonation of delay, therefore, the application was liable to be dismissed. Said order has been upheld by the learned Appellate Court.

5. Learned Counsel for the petitioner submitted that the order and the judgment passed by the learned Courts below are not sustainable in the eyes of law, for the reason that an extremely harsh and hyper-technical attitude has been adopted by the learned Courts below. He submitted that as the application seeking restoration of the order of dismissal in default was filed on 03.11.2013, i.e. within one and half months as from the date of dismissal of the case in default, a lenient view ought to have been adopted by the learned Court below. Learned Counsel further submitted that even if the application filed for restoration was not accompanied by an application under Section 5 of the Limitation Act, an opportunity should have been given to the party to file such an application because the endeavour of the Court always has to be to meet the ends of justice rather than throttle the rights of the parties by adopting a hyper-technical attitude. Accordingly, he submitted that as the order passed by the learned Trial Court as well as the judgment