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TMI Blog2006 (11) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ays. Appeal was filed along with the application under section 5 of the Limitation Act, 1963. The said application has been rejected by the impugned order. In the application under section 5 of the Limitation Act, 1963 it was contended that by mistake of counsel an appeal could not be filed and when the applicant contacted his counsel for the preparation of the assessment case for the assessment year 2004-05, it was found that the appeal against the appellate order dated January 29, 2005 could not be filed. The earlier counsel, thereafter handed over the certified copy of the order to the applicant representative on February 20, 2006 thereafter, an appeal was filed on February 21, 2006. An affidavit of Sri Maharaj Singh Bhandari, authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the file which was delivered to Sri Maharaj Singh Bhandari on February 20, 2006. In the application under section 5 of the Limitation Act supported by an affidavit of Sri Maharaj Singh Bhandari, it was contended that the appeal could not be filed within time on account of omission on the part of the earlier counsel. On these facts, in my view there was a reasonable cause for condonation of delay. The Tribunal while rejecting the application under section 5 of the Limitation Act has taken pedantic view. The apex court has consistently held that in the matter of condonation of delay pragmatic view should be taken. In the case of Rafiq v. Munshi Lal reported in AIR 1981 SC 1400, the apex court held that the mistake on the part of the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 merit 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 and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the 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 is no presumption that delay is occasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edabai alies Vaijayantabai Baburao Patil v. Shantaram Baburao Patil reported in [2001] 44 All LR 577; AIR 2001 SC 2582, the apex court made a distinction in delay and inordinate delay observing as under: "In exercising discretion under section 5 of the Limitation Act, the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the otherside will be a relevant factor so the case calls for a more cautious approach . . . ." In New India Insurance Co. Ltd. v. Smt. Shanti Misra reported in AIR 1976 SC 237, the honourable Supreme Court held that discretion given by section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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