Leelabai Shionarayan Paturkar ... vs Laxmibai Mangoji Sakharkar And ...
2002 Latest Caselaw 763 Bom

JUDGMENT

S.D. Gundewar, J.

1. Heard finally at the stage of admission by the consent of the parties.

2. The present civil revision application is directed against the order dated 25-1-2002 passed by the learned 3rd Additional District Judge, Nagpur, whereby the application for condonation of delay filed by the applicants came to be rejected.

3. Non-applicants had filed Civil Suit No. 666/1997 against the applicants for ejectment, possession and recovery of arrears of rent and mesne profits. The said suit came to be decreed by the learned Additional Chief Judge, Small Causes Court, Nagpur on 16-11-2000 and the applicants (original defendants) were directed to deliver the vacant possession of the suit premises to the non-applicants/original plaintiffs. The applicants were also directed to pay Rs. 540/- to the non-applicants together with interest thereon at the rate of 8% p.a. from the date of filing of the suit till the date of payment. So also an enquiry regarding the mesne profits was directed.

4. The applicants applied for certified copy of the said judgment and decree on 17-11-2002 and though the certified copies of the judgment and decree were ready for delivery on 22-11-2000, they obtained the same on 8-12-2000, and filed an appeal on 31-3-2001, and since there was delay of about 83 days in filing the said appeal, they filed an application for condonation of delay under section 5 of the Limitation Act. It was contended by the applicants in the said application that since the applicant No. 1 was ill, she could not contact her Counsel in time and, therefore, there was delay in filing the said appeal.

5. The non-applicants resisted the said application on the ground that though the applicants No. 1 was ill, the other applicants could have contacted their Counsel and filed the appeal in time, but as they did not do so, the delay may not be condoned since there was no sufficient cause in not filing the appeal within limitation.

6. The learned 3rd Additional District Judge, Nagpur, after hearing the learned Counsel for the parties and considering the material on record, found that the applicants failed to explain the delay properly and the explanation offered by the applicants being vague, rejected the said application vide order dated 25-1-2002, which is under challenge in this civil revision application.

7. Heard Shri Mishra, learned Counsel for the applicants and Shri S.I. Khan, learned Counsel for the non-applicants.

8. Shri Mishra, learned Counsel for the applicants submitted that the applicant No. 1 was suffering from chronic bronchitis with enteric fever and was under the treatment of Dr. Madanmohan R. Yadav of Nagpur from 6-1-2001 to 25-1-2001. According to him, due to the said illness, she was unable to move and, therefore, could not contact her Counsel. It is also submitted by him that though there were other applicants, they were not willing to co-operate the applicant No. 1. According to Shri Mishra, though there was some lapse on the part of applicant No. 1, that is not enough to turn down her plea particularly when the explanation offered by the applicant No. 1 does not smack of mala fides.

9. Shri Khan, learned Counsel for the non-applicants, while supporting the impugned order, submitted that since there was no proper explanation offered by the applicants regarding the delay caused in filing the appeal, the learned Additional District Judge has rightly rejected the application filed by the applicants for condonation of delay. It is also submitted by him that though the applicant No. 1 was not keeping well, the other applicants could have contacted the Counsel and filed the appeal in time and since this was not done, the impugned order passed by the learned Additional District Judge being just and proper, needs no interference at the hands of this Court.

10. The fact that the appellant No. 1 was ill and was suffering from chronic bronchitis with enteric fever and was under the treatment of Dr. Madanmohan R. Yadav of Nagpur has not been disputed by the learned Counsel for the non-applicants. Under these circumstances, there appears to be much substance in the contentions raised by the applicant No. 1 that on account of her aforesaid illness, she was unable to move and contact her Counsel. Further, it is contended by the applicant No. 1 that though there were other applicants, they were not willing to co-operate her and, therefore, the appeal could not be filed in time. The Apex Court, in Balakrishnan v. M. Krishnamurthy, , while considering the application for condonation of delay filed under section 5 of the Limitation Act, observed in para Nos. 13 and 14 as under :

"13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea as to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party.

14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial Court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rupees Fifty thousand from the delinquent Advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial Court but on a condition that appellant shall pay a sum of Rupees Ten thousand to the respondent (or deposit it in this Court) within one month from this date."

11. Considering the ratio laid down by the Apex Court in the aforesaid decision and having regard to the fact that the applicant No. 1 was ill and was suffering from chronic bronchitis with enteric fever and was unable to move for sufficiently long time, in my opinion, the aforesaid explanation offered by her being proper, the learned Additional District Judge ought to have considered the same and condoned the delay. It seems that though the learned Additional District Judge has referred the aforesaid decision of the Apex Court, has not considered the observations made by the Apex Court in the aforesaid paragraphs. It is well-settled that the expression 'sufficient cause' in section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delay in bringing appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In the case-at-hand, there seems to be no deliberate inaction on the part of the applicant No. 1. The cause of delay appears to be due to her illness which is supported by the medical certificate and, therefore, in my opinion, there being sufficient cause, the delay needs to be condoned in the interest of justice.

12. For the reasons stated hereinabove, in my opinion, the impugned order passed by the learned Additional District Judge needs to be quashed and set aside by allowing the present civil revision application.

13. In the result, the civil revision application is allowed. The impugned order dated 25-1-2002 passed by the learned 3rd Additional District Judge, Nagpur is hereby quashed and set aside. The application filed by the applicants for condonation of delay is hereby allowed subject to the payment of costs of Rs. 1000/- (Rupees one thousand) by the applicants to the non-applicants within two weeks from today.

Civil revision application allowed.