Shivaji Shivlingappa Kadge And ... vs Chief Officer, Municipal Council
2005 Latest Caselaw 454 Bom

JUDGMENT

D.S. Zoting, J.

1. Heard Shri S. V. Gangapurwala, Advocate for the petitioners and Shri P. F. Patni, Advocate for the respondent.

2. Rule. Rule made returnable forthwith. With consent, taken up for hearing.

3. By this writ petition, the petitioners have challenged the order dated 16-8-2004 passed by the Extra Joint District Judge, Aurangabad in M.A.R.J.I. No. 25 of 2004. The petitioners have filed M.A.R.J.I. No. 25 of 2004 before the District Court for condonation of delay of 139 days in filing the appeal against the decree of mesne profit dated 28-7-2003. The delay is sought to be condoned on the ground that the petitioner No. 1 has become Karta of Joint Hindu family after the death of Shivlingappa and he was looking after the entire affairs of the family. However, he has become suddenly ill due to disturbance in cervical cord and he was almost become crippled and as such, he was not in a position to move from one place to another. Therefore, he was shifted to the hospital at Puttur in Andhra Pradesh for treatment where he was admitted in the hospital from 12-9-2003 to 12-1-2004 and thereafter he was discharged. According to him, he immediately sent his brother to the petitioner's Advocate at Aurangabad and drafted the appeal along with the application for condonation of delay. He has filed medical certificate along with the application for condonation of delay in support of his contention. After going through the material placed on record, the learned Extra Joint District Judge, Aurangabad rejected the application for condonation of delay. Therefore, he has filed this writ petition against the said order.

4. It is to be noted that the delay deserves to be condoned if the petitioner is in a position to show that he was prevented by sufficient cause from filing the appeal within the period of limitation. It is well settled that sufficient cause needs to be construed liberally and pragmatic approach is required to be taken rather than pedantic.

5. In this regard, the following guidelines should be borne in mind while interpreting the concept of "Sufficient cause", issued by the Supreme Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors., .

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act, 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:

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 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 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 vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

6. 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 is expected to do so.

6. The above guidelines are followed by this Court in the case of Sonerao Sadashivrao Patil and Anr. v. Godawaribai w/o Laxmansingh Gahirewar, 1999 (2) Mh.L.J. 272.

7. Thus, the primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. It is to be borne in mind that the rules of limitation are not made to harm the valuable rights of the parties. Reference with profit can also be made to the case of N. Balkrishnan v. M. Krishna Murthy, . The Supreme Court has observed that the rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics. The Supreme Court has further observed that Section 5 of the Limitation Act does not say that the discretion given to the Court can be exercised only if delay is within a certain limit. Length of delay is not the matter, acceptability of explanation is the only criterion.

8. In the light of the above guidelines laid down by the Supreme Court, it is to be seen whether there appears sufficient cause for condonation of delay. As already pointed out, no doubt the petitioner No. 1 was admitted in the hospital from 12-9-2003 to 12-1-2004, the fact remains that he was suffering from the disease of bone which must have developed gradually. It is to be noted he was shifted to Andhra Pradesh and admitted in the hospital at Puttur when he became crippled and was not in a position to move from one place to another. Under such circumstances, it is also necessary to see the condition of this petitioner prior to 12-9-2003 and as he states on oath in his application for condonation of delay, (which was duly verified), that due to illness he was not in a position to take necessary steps in the matter. Such explanation needs to be accepted as correct and true. It is to be noted that the petitioner, who claims to be the Karta of joint family, is not going to gain anything on account of delay. Even if the delay is condoned, no prejudice is going to be caused to the opposite party as the opposite party would have been compensated by saddling costs on the present appellant.

9. In such peculiar facts and circumstances, there does not appear any doubt that the petitioner was prevented by sufficient cause from filing the appeal against the decree. Under such circumstances, the delay of 139 days in filing the appeal deserves to be condoned, in the interest of justice on saddling costs on the petitioner and the petition deserves to be allowed.

10. In the result, the order dated 16-8-2004 passed by the Extra Joint District Judge, Aurangabad is quashed and set aside. The application for condonation of delay filed by the petitioner is allowed on payment of costs of Rs. 1,000/- payable to the respondent within a period of two weeks from the date of this order. Costs to be deposited in the District Court, Aurangabad in M.A.R.J.I. No. 25 of 2004. Rule made absolute accordingly.