M.P. Thakkar, J.
1. If the lower judiciary were to make an approach which has been made by the learned District Judge, Bhavnagar, the ends of substantial justice are not likely to prevail in the life time of the present generation. This gloomy prognosis of darkness and despair is provoked by the circumstance that the learned District Judge, Bhavnagar, has refused to condone a delay of mare five days occasioned on account of the death of the petitioner's child. In Ratanlal and Ors. v. Rewa Coalfields : 2SCR762 and the State of West Bengal v. The Administrator, Howrah Municipality and Ors. : 2SCR874a , the Supreme Court has emphasised the need for interpreting the expression 'sufficient cause' employed in Section 5 of the Limitation Act in a liberal manner so as to advance the cause of substantial justice particularly when no negligence or inaction or want of bona fides is imputable to a party. The learned District Judge, Bhavnagar, has exhibited a total unawareness about the cause of substantial justice and has refused to condone a delay of a short period of five days even in the face of the fact that death had stalked into the home of the poor petitioner and snatched away his child. With tears welling up in the eyes no one with human feelings would think of appeals and law Courts.
2. Examining the matter on principle when the Court is confronted question of condoning delay the mental radar must flash the following messages:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result 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 condoned' does not mean that a pedantic unpragmatic 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 a vested right in injustice being done because of a nondeliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. The presumption would be just the other way round.
6. It is unreasonable to adopt the approach of a school master using his rod to discipline the student. One need not bend backwards in such matters. The attitude must be one informed with greatest awareness for the cause of justice.
7. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and expected to do so.
3. Turning now to the facts, the petitioner is a poor peon employed in the Municipality of Bhavnagar. A decree for eviction against him was passed by the trial Court on January 31, 1974. He applied for certified copies of the judgment and decree on February 18, 1974. The copies Were ready for delivery on March 16,1974. The appeal against the decree for eviction ought to have been presented by him latest on March 29,1974, which was the last day of limitation taking into account the time required for obtaining the certified copies of the judgment and decree. Unfortunately, a 1 years old child of the petitioner died on March 27, 1974 two days before the last day for filing the appeal. Under the circumstances the appeal was lodged on April 5, 1974 instead of March 29, 1974. Thus, there was a delay of five days taking into account the fact that March 31, 1974 and April 1, 1974 were holidays. In order to explain the delay the petitioner filed an affidavit accompanied by the death certificate of his child and prayed for condonation of delay. It was stated by the petitioner in the affidavit that as obsequial ceremonies had to be performed and as relatives were paying condolence visits, he could not file the appeal till April 5, 1974. The opponents filed an affidavit to the effect that as per the custom in their community mourning had to be observed for only three days. After examining the affidavits with a hyper sensitive lens the learned Judge rejected the application for condoning delay. Now there is no justification in law or in principle for wearing an inhuman face and for showing total unawareness about the feelings of parents who have lost a child whatever be the age of the child. It would be wrong for the Court to prescribe a rigid period for mourning or feeling sad in such matters. There is no reason why the statement of the petitioner that he could not attend to this matter for five days should have been viewed with uncalled for doubt or suspicion. Surely, the petitioner was not interested in deliberately delaying the filing of the appeal. What was he to gain by the delay? The learned Judge also took into account the fact that during these five days the petitioner was attending to his duties. No importance was attached to the fact that he was on night duty and was required to attend the Municipal Office at night time. It was overlooked that the obsequial ceremonies bad to be performed during the day time and that the visitors calling on him for condolence visit would do so during the day time and not during the night time. It would be unpardonable for one to sit with a stop watch to consider when the period of mourning would start and when a person who has lost his child should be in a fit condition to approach his lawyer with papers (and fees) in order to give him instructions for filing the appeal. Again, a peon in the Municipality cannot just withdraw the sum necessary to meet such a situation from his Bank Account like other more fortunate citizens. He has to make necessary financial arrangement to perform obsequial ceremonies and to meet the expenditure one has to incur on such occasions. And he would also have to pay Court fees, expenses and advocate's fees in order to file an appeal. The delay of five days was occasioned under the aforesaid circumstances. As remarked earlier, the petitioner was not to gain any advantage by delaying the matter for five days. In fact, he faced the peril of being thrown out on the street if he did not file the appeal against an eviction decree. Even those who occupy spacious Government Quarters can visualize the plight that such a person would have to face. No such person, if sane, would commit deliberate delay or remain culpably negligent in such a situation. Even if one weighs all these factors in a golden scale (ought one to do so?) no reasonable person can conclude that the petitioner was either negligent or inactive or that he was acting with mala fides. The conclusion reached by the learned Judge is perverse and must, therefore, be set aside.
4. Under the circumstances the petition deserves to succeed. It was, however, argued by the Counsel for the opponents that power under Article 227 of the Constitution of India should not be exercised to interfere with such a decision. Reliance has been placed on Babhutmal Raichand Oswal v. Laxmibai R. Tarte and Anr. : AIR1975SC1297 in support of this proposition. It is no doubt true that this Court is not exercising appellate powers. But then this Court can, and indeed must, interfere when it is necessary to do so to promote the ends of substantial justice particularly when the impugned decision is perverse and is rendered without due regard to the interpretation of the expression 'sufficient cause' in the light of law declared by the Supreme Court. In fact, if the decision of the lower Court is perverse, the High Court can interfere even in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure. The powers under Article 227 are much wider. There is, therefore, no good reason why the High Court should raise its hands in helplessness in a gross case like the present one. The petition must, therefore, succeed. The decision rendered by the learned District Judge, Bhavnagar, by his order dated September 3, 1974, in Miscellaneous Civil Application No. 32 of 1974 is quashed and set aside. The delay in filing the appeal is condoned. The District Court shall now admit the matter on the register of appeals and proceed to deal with the appeal in accordance with law.
5. In the result, the petition is allowed. Rule is made absolute. There will be I no order- regarding costs.