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TMI Blog2013 (1) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as barred by time as day to day delay was not explained in the application for condonation of delay. While assailing this order, Sri Ram Prakash Rai, leaned counsel appearing for the petitioners contends that the Deputy Director of Consolidation has erred in rejecting the petitioners' restoration application on the ground that day to day delay was not explained. In his submissions, there was plausible explanation given in the restoration application but that has been misinterpreted by the Deputy Director of Consolidation, In his further submissions, that while considering the application for condonation of delay, in view of settled legal position a sympathetic view ought to have been taken by the learned D.D.C. Sri Bheem Singh, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the Court's preshkar have told that the case was dismissed on 18.8.1995 and the petitioners without ascertaining from the record as to whether case was dismissed for default on 18.8.1995 believing on the version of them, have filed a restoration application. It again appears that without disposal of the restoration application for recall of the order dated 18.8.1995, the revision was dismissed in default on 8.4.2003. It is stated that in the year 2003, the petitioner's sister had fallen ill and she expressed her last will to get her treatment at Varanasi, the petitioner No. 1, for the treatment of her sister, has gone to Varanasi, ultimately, his sister died and it appears in the meantime, the case was dismissed. When the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be laid to prove strict standards of sufficient cause. Para 13.... 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. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation' thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without ascertaining the facts as to when the case dismissed for default, a restoration application was filed for recall of the order which was not even in existence and again it has been allowed to be dismissed in April, 2003. There are more than one petitioners and even if one of the petitioner had gone for treatment of his sister, the remaining petitioners ought to have taken care of the litigation but instead of doing so, they have been through out negligent. The existing facts goes against the petitioners. 9. However since the case has never seen the light of the day on merit and the same has been dismissed in default, therefore the Court, would prefer to direct the revisional Court to decide the matter of merit after condoning the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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