POONAM & OTHERSversusHARISH KUMAR AND ANOTHER

                [2011) 15 (ADDL.) S.C.R. 291

                     POONAM & OTHERS                                 A
                                 v.
               HARISH KUMAR AND ANOTHER
                (Civil Appeal No. 9059 of 2011)
                     NOVEMBER 03, 2011
                                                                     B
               [ASOK KUMAR GANGULY AND
                 GYAN SUDHA MISRA, JJ.]

       Delayllaches - Appeal - Delay of 63 days in filing appeal
 against the judgment and decree passed by trial court in a C
 civil suit filed by the plaintiffs-appellants - Application for
 condonation of delay in filing appeal dismissed by the
 appellate court - Order upheld by High Court in revision -
 Held: When a Court exercises its discretion in either
 condoning or refusing to condone delay in filing any                o
proceeding, the Court acts in exercise of its discretion -
 Normally, Supreme Court in exercise of its discretion under
Article 136 of the Constitution may not interfere with the
exercise of discretion by the High Court in such matters -
However, there is no strait-jacket about this - The discretion E
of Supreme Court under Article 136 of the Constitution is
meant to further the ends of justice and Supreme Court has
been using its discretion in appropriate cases when it is
satisfied that exercise of jurisdiction by the High Court or other
Tribunals has not been on sound judicial principles - In the
facts of this case it is clear that of all the three ladies, who were F
the appellants, one of them was pursuing the case and she
fell sick - Therefore, she was not in a position to pursue the
legal remedy with due diligence as a result of which the
appeal was filed with a delay of 63 days - The delay of 63 G
days is not a delay for a long period and there was some
explanatio'n for the delay - The High Court should have
considered the explanation for the delay along with the facts
of the case, the position of the parties, the nature of the

                              291                                   H
   292    SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A litigation and the period of delay - The High Court should also
  have considered that it has been settled by a catena of cases
  that, unless the delay is gross, an explanation for the same
  should be liberally construed - Apparently, the High Court
  was not able to consider all these relevant facts in their correct
B perspective before passing the impugned order - Order of the
  High Court set aside and delay in filing the appeal condoned
  - Constitution of India, 1950 - Article 136.

        Appellants nos. 1 to 3 are sisters of Respondent no.
  1, who is their brother. The parents of the parties had
C died. The appellants filed a civil suit for declaration of their
  title as 3/9th owner each, of the suit scheduled properties
  and for permanent injunction restraining Respondent
  no.1 from interfering with their peaceful possession and
  creating any third party rights In the said properties. The
D Trial Court dismissed the suit and accordingly a decree
  was drawn up.

        The appellants-plaintiffs challenged the judgment
  and decree by filing an appeal before the District Judge.
E The appellants-plaintiffs also filed an application for
  condonation of delay of 63 days in filing the appeal
  stating that appellant no. 2 and 3 were married and
  illiterate; that appellant no.1 was pursuing the case in the
  court but during pendency of the case, appellant no.1 fell
F ill and therefore requested the counsel to intimate to the
  appellants regarding the position of proceedings; that the
  counsel assured that he will inform the appellants as and
  when their presence was needed in the court, but the
  counsel never informed the appellants for giving their
  evidence in court, which resulted in dismissal of the case;
G that later someone from the locality informed the
  appellants about the dismissal of the case whereafter the
  appellants rushed to the Court and applied for a certified
  copy of the judgment and then filed the appeal a little
  belatedly. The District Judge dismissed the application for
H
    POONAM & ORS. v. HARISH KUMAR AND ANR.                    293

condonation of delay on the ground that the delay was A
not bona-fide and no reasonable cause has been made
out to condone the delay. The reasoning of the District
Judge for reaching the above conclusion was that, (i) the
appellants were neither illiterate nor rustic villagers as all
of them had signed in English and (ii) that during course
                                                               8
of proceedings before the trial court, the appellants were
careless and negligent. Against this order, the appellants
preferred a revision before the High Court. The High
Court upheld the order of the District Judge holding that
the delay of 63 days in filing the appeal was not properly C
explained. Hence the present appeal.

     Allowing the appeal, the Court

      HELD:1. When a Court exercises its discretion in
 either condoning or refusing to condone delay in filing             0
 any proceeding, the Court acts in exercise of its
 discretion. Normally, this Court in exercise of its
 discretion under Article 136 of the Constitution may not
 interfere with the exercise of discretion by the High Court
 in such matters. However, there is no strait-jacket about           E
this. The discretion of this Court under Article 136 of the
Constitution is meant to further the ends of justice and
this Court has been using its discretion in appropriate
cases when it is satisfied that exercise of jurisdiction by
the High Court or other Tribunals has not been on sound
                                                                     F
judicial principles. It is well settled that judicial discretion
shall always be exercised "according to the rules of
reason. and justice and not according to private opinion"
[Para 14] [297-C-F]

     Sharpe v. Wakefield (1891 AC 193) - referred to.                G
    2. In the facts of this case it is clear that of all the three
ladies, who were the appellants, one of them was
pursuing the case and she fell sick. Therefore, she was
not in a position to pursue the legal remedy with due                H
    294    SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A diligence as a result of which the appeal was filed with a
   delay of 63 days. The delay of 63 days is not a delay for
   a long period and there has been some explanation for
 · the delay. The High Court should have, before passing
   the impugned judgment, considered the explanation for
8 the delay along with the facts of the case, the position of
   the parties, the nature of the litigation and the period of
   delay. The High Court should also have considered that
   It has been settled by a catena of cases that, unless the
   delay is gross, an explanation for the same should be
C liberally construed. It appears that the High Court has not
   been able to consider all these relevant facts in their
   correct perspective before passing the impugned order.
   [Para 15] [297-G-H; 298-A-B]

      3. The order of the High Court is set aside and the
D delay is condoned. The appeal is directed to be restored
  to i~ file. [Para 16] [298-C]
                          Case Law Reference:
          (1891 AC 193)            referred to           Para 14
E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    9059 of 2011.

      From the Judgment & Order dated 01.12.2008 of the High
  Court of Punjab & Haryana at Chandigarh in Civil Revision No.
F 3745 of 2008.

          M.K. Dua for the Appellant.

      Rajesh Tyagi, Dilip K. Sharma, Atishi Dipankar for the
G Respondents.
          The Judgment of the Court was delivered by

          GANGULY, J. 1. Leave granted.

          2. This civil appeal is directed against the 01.:ler dated
H
     POONAM & ORS. v. HARISH KUMAR AND ANR.                   295
           [ASOK KUMAR GANGULY, J.]
 01.12.2008 of the High Court of Punjab and Haryana at A
 Chandigarh in Civil Revision No.3745/2008, whereby the High
 Court declined to interfere with the order dated 27.07.2007 of
 the District Judge, Ambala. By order dated 27.07.2007 the
 District Judge dismissed the application for condonation of
 delay of 63 days in filing the appeal against the judgment of 8
 the trial court in Civil Suit No. 23/2003.

     3. The facts and circumstances, which are relevant to this
 appeal, are as under.

       4. All the appellants no. 1 to 3 are sisters of Respondent C
 no. 1, who is their brother. The father of the parties died on
 17.01.2003 and the mother had predeceased the father. Eight
 daughters and one son survived their father. The father during
 his lifetime arranged the marriage of six daughters except the
 appellant no. 1 & 2 herein.                                      D

      5. In the year 2003, the appellants brought a suit (CS no.
 23 of 2003) before the Civil Judge, Ambala City for declaration
 of their title as 3/9th owner each, of the suit scheduled
 properties and for permanent injunction restraining the
•Respondent no.1 from interfering with their peaceful                E
 possession and creating any third party rights in the said
 properties. According to the appellants- plaintiffs, the suit
 schedule properties were their ancestral property in which
 plaintiffs have got right by birth and all of them have got equal
 shares in the same.                                                 F

     6. The Respondent no. 1 controverted the aforesaid
averrnent of the appellants-plaintiffs by claiming that the suit
schedule properties were not ancestral but were self-acquired
by their deceased father. Further case of the Respondent No.1 G
is that he is the absolute owner of the said properties by virtue
of a registered Will dated 18.06.2002 executed by the
deceased father in his favour.

     7. On the pleadings of the parties, the Trial Court framed
                                                                     H
    296    SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A five issues. Thereafter the case was adjourned for evidence of
  the appellants- plaintiffs. Despite several opportunities, the
  appellants-plaintiffs allegedly led no evidence. Since there was
  no evidence of the plaintiffs on record, the Respondent
  no.1defendant also did not lead any evidence.
B       8. By order dated 01.12.2006 the Trial Court dismissed
    the suit filed by the appellants-plaintiffs with costs and
    accordingly a decree was drawn up.

        9. The appellants-plaintiffs challenged the aforesaid
C judgment and decree by filing an appeal before the District
  Judge, being Civil Appeal No.12 of 2007. The appellants-
   plaintiffs also filed an application for condonation of delay of
  63 days in filing the appeal by offering an explanation which
  can be summarized as under:
D
        "That the appellant no. 2 and 3 were married and illiterate.
        The appellantno.1 was pursuing the case in the
        court.During the pendency of the case, appellantno.1 fell
        ill and therefore requested thecounsel to intimate to the
        appellantsregarding the position of proceedings. The
E       counsel assured that he will inform the appellants as and
        when their presence is needed in the court. But the
        counsel never informed the appellants for giving their
        evidence in court, which resulted in the dismissal of the
        case on 1.12.2006. On 26.02.2007, someone from the
F       locality informed the appellants about the dismissal of the
        case. Thereafter the appellants rushed to the Court and
        applied for a certified copy of the judgment and then filed
        the appeal a little belatedly.•

G        10. By order dated 27.07.2007, as noted above, the
    District Judge dismissed the application for condonation of
    delay on the ground that the delay was not bona-tide and no
    reasonable cause has been made out to condone the delay.
          11. The reasoning of the District Judge for reaching the
H
   POONAM & ORS. v. HARISH KUMAR AND ANR.                     297
         [ASOK KUMAR GANGULY,.J.]
 above conclusion was that, (i) the appellants are neither illiterate A
 nor rustic villagers as all of them had signed ill English. (ii)
.During the course of proceedings before the trial court, the
 appellants were careless and negligent.

     12. Against this order the appellants preferred a revision
before the High Court.
                                                                8

     13. By impugned order dated 01.12.2008 the High Court
dismissed the revision petition upholding the order of the
District Judge. The High Court expressed the view that the delay
of 63 days in filing the appeal has not been properly explained. C

       14. We cannot accept the view taken by the High Court in
 the impugned judgment. When a Court exercises its discretion
 in ejther condoning or refusing to condone delay in filing any
 proceeding, the Court acts in exercise. of its discretion. D
 Normally, this Court in exercise of its discretion under Article
 136 of the Constitution may not interfere with the exercise of
discretion by the High Court in such ·matters. However, there
 is no straitjacket about this. The discretion of this Court under
Article 136 of the Constitution is meant to further the ends of
justice and this Court has been using its discretion in E
appropriate cases when it is satisfied that exercise of
jurisdiction by the High Court or other Tribunals has not been
on sound judicial principles. It is well settled that judicial
discretion shall.always be exercised "according to the rules of
reason and justice and not according to private opinion" [See F
Sharpe Vs. Wakefield (1891 AC 193)].

     15. In the facts of this case it is clear that of all the three
ladies, who were the appellants, one of them was pursuing the
case and she fell sick. Therefore, she was not in a position to G
pursue the legal remedy with due diligence as a result of which
the appeal was .filed with a delay of 63 days. The delay of 63
days is not a delay for a long period and there has been some
explanation for the delay. The High Court should have, before
passing the impugned judgment, considered the explanation for H


                                                                . .
   298    SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A the delay along with the facts of the case, the position of the
  parties, the nature of the litigation and the period of delay. The
  High COJ.Jrt should also have considered that it has been settled
  by a catena of cases that, unless the delay is gross, --an
  explanation for the same should be liberally construed. It
8 appears that the High Court has not been able to consider all
  these relevant facts in their correct perspective before passing
  the impugned order.

       16. We, therefore, are constrained to set aside the order
  of the High Court and condone the delay. We direct that the
C appeal should be restored to its file and the hearing of the
  appeal may proceed as expeditiously as possible.
        17. However, nothing said in this judgment should be
  considered as expression of opinion on the merits of the
o controversy between the parties. The appeal is allowed. There
  will be no .order as to costs.
    8.8.8.                                        Appeal allowed.