Hon’ble B.S. Verma, J (Oral)

By means of this petition, the petitioner has sought a writ in the nature of certiorari to quash the impugned order dated 07.12.2004, passed by District Judge, Pauri Garhwal in Misc. Case No. 11 of 2004, Swami Omkarananda Dharma Sansthan vs. Nagar Panchayat and others, whereby the application under Section 5 of the Limitation Act, 1963 moved by the petitioner has been dismissed.

2. Briefly stated the facts of the case giving rise to this petition are that the suit which was pending before the Civil Judge, Pauri Garhwal, on the basis of statement made by the counsel for the plaintiff/petitioner that parties have entered into compromise out of the court was dismissed. According to the petitioner, Sri K.P. Dangwal, Advocate, who has been engaged by the plaintiff/petitioner for conducting the case, gave no intimation, therefore, he could not file any appeal. The learned District Judge, Pauri Garhwal has not considered this aspect of the matter that the case was not decided on merit, it was only decided on the statement made by the counsel for the plaintiff/petitioner that the parties have entered into compromise out of the court. According to the plaintiff/petitioner, when this fact came to the notice that the suit was dismissed in view of the statement made by the counsel of the plaintiff/petitioner, appeal was filed by the petitioner, along with appeal an application under Section 5 of Limitation Act was also filed explaining the delay in filing the appeal. Vide impugned order dated 07.12.2004, learned District Judge has dismissed the delay condonation application.

3. It is well settled that the party cannot be made to suffer on account of fraud. In the case at hand, the plaintiff/petitioner has alleged that he has not given any instruction to his counsel to make such type of statement before the Court. It is also equally well settled that the court should not take hyper-technical view. It is also well settled that if the delay is sufficiently explained, pedantic approach should not be adopted in such matters.

4. In the case of N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC, 123, Hon’ble Apex Court has held in para nos. 9 & 12 as under:

“9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion.

12. The word “sufficient cause” Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”

5. In the above facts and circumstances of the case and in view of above law, I am of the considered view that the judgment and order, passed by District Judge, Pauri Garhwal, dated 07.12.2004 in Misc. Case No. 11 of 2004, Swami Omkarananda Dharma Sansthan vs. Nagar Panchayat and others, is liable to be set aside.

6. The writ petition is allowed. The impugned order dated 07.12.2004 (Annexure No.5 to the writ petition), passed by District Judge, Pauri Garhwal is set aside.

7. The learned District Judge, Pauri Garhwal is directed to decide the civil case on merit after hearing the parties to appeal.