JUDGMENT :

VIKRAM AGGARWAL, J.

CM-264-C-2024 For the reasons given in the application, the same is allowed and the delay of 177 days in re-filing the appeal is condoned.

CM-266-C-2024 and RSA-95-2024

This is defendant’s appeal against the judgment and decree dated 08.01.2018 passed by the Court of Additional District Judge, Hisar, allowing the appeal filed by the plaintiff against the judgment and decree dated 04.03.2015 passed by the Court of Civil Judge (Senior Division), Hisar, whereby the suit filed by the plaintiff had been decreed to the extent of alternative relief of refund of the earnest money, thereby decreeing the suit for specific performance as had been prayed for.

2. The applicant-appellant has filed CM-266-C-2024 seeking condonation of 1121 days’ delay in filing the appeal. It has been averred in the application that the suit filed by the plaintiff-respondent was decreed by Courts below exparte and as such, the applicant-appellant had no knowledge of the said fact. It has further been averred that the applicant-appellant came to know about the decision of the appeal by the first Appellate Court, only when the summons in the execution proceedings were issued against her.

3. Learned counsel representing the applicant- appellant, while reiterating the averments made in the application seeking condonation of delay, argues that the delay in filing the appeal, is neither intentional nor willful and rather, the same is due to the circumstances explained above. It is further argued that it is settled law that matters should not be decided on technicalities and rather, the same should be decided on merits.

4. Per contra, learned counsel for the non- applicant/respondent, while controverting the submissions made by the counsel for the applicant-appellant, submits that there is a huge delay of more than three years in filing the appeal and that the applicant-appellant has failed to show any sufficient cause to condone the same.

It is also pointed out that the applicant-appellant has duly been appearing in the execution proceedings. Reference has been made to the orders dated 20.03.2020; 27.09.2021; 03.12.2021; 28.07.2022; 31.10.2022; 25.01.2023 and 11.04.2023 passed by the Executing Court, in this regard.

Learned counsel for the non-applicant/appellant has not been able to controvert or deny the aforesaid fact.

5. I have considered the submissions made by learned counsel for the parties.

6. As per Section 5 of the Limitation Act, if sufficient cause is shown for not preferring an appeal or an application (other than an application under the provisions of Order XXI CPC) within the prescribed period, the same may be admitted after the prescribed period as well. It is by now well settled that the Courts have to adopt a liberal approach while dealing with an application for condonation of delay. It is also well settled that normally, parties should be heard on merits and should not be non suited on technicalities. In the case of Esha Bhattacharjee versus Managing Committee of Raghunathpur Nafar Academy and others, 2013 (4) RCR (Civil) 785, the Hon’ble Apex Court culled out the principles with regard to condonation of delay. It was laid down by the Hon’ble Apex Court as under:-

“From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross n