Bombay High Court

Smt. Surekha Wd/O. Mahadevrao ... vs Anandrao S/O. Ganpatrao Mahajan ... on 31 July, 2017

Bench: I.K. Jain

wp.3584.16.jud                    1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR

                     WRIT PETITION NO.3584 OF 2016

Smt. Surekha wd/o Mahadevrao Wanjari,
Aged about 58 years, Occu : Household,
At Plot No.74, Sarvatra Nagar,
Maskey Layout, Behind Radisson Hotel,
Wardha Road, Nagpur-15, through her POA.                    .... Petitioner

       -- Versus -

Anandrao s/o Ganpatrao Mahajan (Dead),
through L.Rs.

   1] Smt. Suman wd/o Anandrao Mahajan,
      Aged about 64 years, Occu : Household.
      R/o Plot No.79/86, Mire Layout,
      Sudampuri, Beside Gorle's House,
      Near Nehru Nagar, Nagpur - 24.

   2] Sanjay s/o Anandrao Mahajan,
      Aged about 44 years, Occu : Private Service,
      R/o Plot No.79/86, Mire Layout,
      Sudampuri, Beside Gorle's House,
      Near Nehru Nagar, Nagpur - 24.

   3] Jitendra s/o Anandrao Mahajan,
      Aged about 42 years, Occu : Private Service
      R/o Plot No.79/86, Mire Layout,
      Sudampuri, Beside Gorle's House,
      Near Nehru Nagar, Nagpur - 24.

   4] Sau. Archana w/o Anandrao Bhure,
      Aged about 40 years, Occu : Household,
      R/o Vinoba Bhave Nagar, (Owner of Hotel),
      Tumsar, Tah. Tumsar,
      Distt. Bhandara - 441912.

   5] Sau. Savita w/o Pravin Girde,
      Aged about 38 years, Occu : Household,




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       R/o Plot No.375, In between Neev Maloti
       and Maitri Girls' Hostel, Cafee-Coffee Day,
       Opposite Old Wockhardt Hospital,
       North Ambazari Road, Nagpur - 440 010. .... Respondents

Shri M.R. Joharapurkar, Advocate for the Petitioner.
Shri S.D. Ingole, Advocate for the Respondents.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : JULY 31, 2017.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned Counsel for the parties.

02] This petition takes an exception to the order dated

28/10/2015 passed by the learned Civil Judge Senior Division,

Nagpur in M.J.C. No.155/2006 thereby rejecting an application for

condonation of delay in filing M.J.C. under Section 5 of the

Limitation Act.

03] The facts giving rise to the petition may be stated in

nutshell as under :

i. Petitioner was plaintiff in S.C.S. No.616/1987

instituted for specific performance of contract against

respondents. The said suit was dismissed in default

on 22/07/1999. Petitioner preferred M.J.C.

No.196/1999 for restoration of S.C.S. No.616/1987.

The said M.J.C. also came to be dismissed in default

on 13/08/2003. As petitioner was desirous for filing

application for restoration of M.J.C. No.196/1999, she

filed an application for condonation of delay to file

such an application. M.J.C. No.155/2006 was for

condonation of delay in filing an application for

restoration of M.J.C. No.196/1999. Vide impugned

order dated 28/10/2015, trial Court refused to

condone the delay. Being aggrieved thereof, this

petition has been filed by the original plaintiff-

petitioner.

04] Heard Shri M.R. Joharapurkar, learned Counsel for

petitioner and Shri S.D. Ingole, learned Counsel for respondents.

Two grounds were raised by petitioner in an application for

condonation of delay (i) her own illness and (ii) she was not

aware about dismissal of M.J.C. No.196/1999 and came to know

only after the Counsel representing her informed that he would

not be able to appear on her behalf. The submission is that the

Court below considered only the ground of illness of petitioner

and no reason is assigned in the impugned order to negative the

second ground raised by petitioner. Learned Counsel submits

that two counter suits were filed, one by petitioner and another

by respondents. Both were clubbed together initially, but later

on by administrative order, they were bifurcated. According to

learned Counsel, petitioner is in possession of disputed property

and in case opportunity is denied to her, it will result in

miscarriage of justice. In support of the submission, learned

Counsel placed reliance on (i) Esha Bhattacharjee vs.

Managing Committee of Raghunathpur Nafar Academy

and others - [(2013) 12 SCC 649], (ii) Ashok Ravji

Vadodriya vs. Municipal Corporation of Greater Bombay -

[2003(3) Mh.L.J. 1003] and (iii) N. Balakrishnan vs. M.

Krishnamurthy - [(1998) 7 SCC 123].

05] Per contra, learned Counsel for respondents supports

the order and submits that the past conduct of petitioner clearly

indicates inaction and negligence on her part. Learned Counsel

points out that the suit was filed in the year 1987. The order of

dismissal of suit would show that she was not vigilant even to

prosecute her suit. There is no whisper in the entire application

to show the date of knowledge and when did her Counsel

express inability to appear on her behalf. According to learned

Counsel, order passed by the Court below does not suffer from

any perversity or illegality and no interference is warranted in

writ jurisdiction.

06] It is not in dispute that Special Civil Suit No.616/1987

was filed by petitioner in the year 1987. It is an admitted fact

that said suit was dismissed in default on 22/07/1999. M.J.C.

No.196/1999 preferred against the order of dismissal of suit was

also dismissed in default on 13/08/2003. Application for

condonation of delay came to be moved somewhere in July,

2006. There is no whisper in the entire application that in 2006,

petitioner was informed by her Counsel that he would not be

able to represent her. The delay is apparently inordinate.

Learned Counsel for petitioner has relied upon the judgment of

the Hon'ble Supreme Court in Esha Bhattacharjee's case (supra).

In Paragraphs 21 to 22.4 of the said judgment, the Hon'ble

Supreme Court has broadly culled out the following principles.

21.1. (i) There should be a liberal, pragmatic, justice- oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be

vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by

taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.

07] In the case on hand, on perusal of grounds raised and

put forth in affidavit by petitioner, it can be seen that

circumstances were not beyond her control and she was not

vigilant in prosecuting her case. No where she states about the

date, month and year of the case dismissed in default and so far

as her own illness is concerned, she admitted in unequivocal

terms that since 2003 to 2006, though she was taking medical

treatment, she was not hospitalized at any point of time.

08] In the above premise and considering the scope of

Section 5 of the Limitation Act, so also the principles laid down

by the Hon'ble Supreme Court, this Court finds that order passed

by trial Court is legal and proper. No interference is thus