The court dismissed an application seeking condonation of a 7-year delay in filing a first appeal. It rejected claims of illness and financial hardship, finding insufficient cause to condone the belated filing.
Civil Application dismissed for failure to show sufficient cause for delay.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.2703 OF 2012 IN
FIRST APPEAL ST.NO.7305 OF 2012
Ravindra Tukaram Gaikwad & Ors.
..... Applicants
Vs.
Dinkar Babu Vhallar
..... Respondent
Mr.Hemant R. Haryan for the applicants
CORAM : K.K.TATED, J. DATE : 24TH AUGUST, 2012
P.C.
7 years 5 months delay in preferring appeal against the judgment and decree dated 29.09.2004 passed by 6th Adhoc Additional District Judge, Kolhapur in Special Civil Suit No.164 of 1997.
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delay of 7 years and 5 months in preferring the First Appeal.
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ridden since last 10 years. Because of this, applicant no.2 also had not taken any appropriate steps for filing the present First Appeal in this court immediately.
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heirs Shriniwas Pandurang Bendre and others1
through the annexures to the application i.e. medical reports, authorities cited by the applicants and the averments made in Civil Application. It is to be noted that in the present proceeding, respondent original plaintiff filed Special Civil Suit No.164 of 1997 in the District Court at Kolhapur for recovery of the amount. The said suit was decreed by the trial court by judgment and decree dt.29.09.2004 holding that respondent original plaintiff is entitled to 1/4th share in the amount of compensation awarded to the applicants original defendants in Special Civil Suit No.166 of 1994. Operative part of the judgment passed by the Trial Court reads thus:
“ ORDER
Suit is decreed with costs.
It is declared that the plaintiff has 1/4th share in the
1 2002(4) Mh.L.J. 723
2 1997(4) ALL MR 429
3 1998(3) Mh.L.J. 706
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amount of compensation awarded to the defendants no.1 to 3 in Special Civil Suit No.166 of 1994.
Defendants No.1 to 3 shall pay 1/4th share amount of compensation out of compensation amount of Rs.3,75,000/ (Rs.Three Lakh Seventy Five Thousand) received by them within one month from the date of this order.
Defendants No.1 to 3 shall pay 1/4th share amount to the plaintiff out of the remaining compensation amount within one month after receipt of the same by them.
Decree be drawn up accordingly.”
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his death, he has not taken any steps to prefer the appeal against the impugned order. There is no explanation what steps he had taken to prefer the present appeal from the date of judgment and decree passed by Trial Court i.e. on 29.09.2004. The reason given by the applicants about the illness is not acceptable at all.
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Pratapchand Lakhamaji Jain vs. Smt.Lilabai Krishanath Surve (Supra) is also not applicable in the present case. In that case, our High Court held that if a party is acting in good faith as per advice of his lawyer when advice itself given bona fide can request for indulgence of court under section 5. In the present case, it is not the case of applicants that because of wrong advice from his lawyer there is delay in preferring the present First Appeal against the impugned judgment and decree dt.29.09.2004.
“13. As held by this Court in the case of Mithailal Dalsangar Singh (AIR 2003 SC 4244 : 2003 AIR SCW 4878)
5 AIR 2010 SUPREME COURT 3043
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(supra), the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally. We may state that even if the term sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex
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facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94]: (AIR 2000 SC 2306 : 2000 AIR SCW 2389), this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR 1962 SC 361] this Court took the view:
"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is
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that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269.
It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should
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condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..."
(K.K.TATED, J.)
Mohite
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2 issues framed by the court
Whether a delay of over seven years in filing a first appeal can be condoned.
Whether serious illness and senior citizen status constitute sufficient cause for condonation of delay.
Colour shows how this judgement treated each authority
Dinkar Ananda Mane deceased through heir Shivaji Dinkar Mane vs. Pandurang Dnyanu Bendre deceased through heirs Shriniwas Pandurang Bendre and othersReferred¶55
Mr.Paul Pinto & Ors. vs. Mrs.Sushila Chandrakant RaikarReferred¶56
Pratapchand Lakhamaji Jain vs. Smt.Lilabai Krishanath SurveReferred¶57
Sonerao Sadashivrao Patil and another vs. Godawaribai Laxmansingh Gahirewar and othersReferred¶59
Mithailal Dalsangar Singh (AIR 2003 SC 4244)Referred¶63
Krishna v. Chathappan, ILR 13 Mad 269Referred¶74
Ravindra Tukaram Gaikwad & Ors.
Dinkar Babu Vhallar
K.K.TATED
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
