Mr. Narsing Jagannath Tambe And ... vs Damodar @ Damu Sadu Tambe
2021 Latest Caselaw 6024 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                     WRIT PETITION (ST) NO. 3059 OF 2021


      Narsing Jagannath Tambe & Ors.                                   ..Petitioners

                     v/s.

      Mr. Damodar @ Damu Sadu Tambe.                          ..Respondents


      Mr. Rajaram V. Bansode for the Petitioners.
      Ms. Ayodhya Patki a/w. Ms. Manjiri Kathwate for the Respondents.

                                CORAM : ANUJA PRABHUDESSAI, J.

DATED : APRIL 05, 2021.

P.C.

1. With consent heard finally at the stage of admission.

2. The Petitioners herein have challenged the Order dated 29 th

January, 2021 whereby learned District Judge, Pune has dismissed

the application filed under Section 5 of the Limitation Act.

3. The Respondent herein had instituted a suit for partition. It

is seen that the Petitioners had put in their appearance through their

Advocate on 15.04.2015. On the subsequent date the Petitioners

and their Advocate failed to remain present and the matter

proceeded ex-parte. The suit was finally decreed on 11 th April,

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2019. The Petitioners claim that they learnt about the judgment on

5th October, 2020, on receipt of notice from TILR for measurement

of the land. It was only thereafter that they filed the appeal

alongwith an application for condonation of delay in filing the

appeal.

4. The Petitioners had sought to condone the delay mainly on the

ground that the Advocate appointed by them had not informed them

about the progress of the suit. Learned District Judge held that the

explanation offered by the Petitioners is not probable and

acceptable. The ld. Judge therefore dismissed the application

holding that the Petitioners had failed to make out sufficient cause

for condoning the delay.

5. Mr. Bansode, learned Counsel for the Petitioner submits that

having entrusted the matter to the Advocate, the Petitioner was

under a bonafide belief that the matter was being contested and his

interest would be protected. He submits that the Petitioner learnt

about the impugned judgment only on 5.10.2020. He submits that

the delay is not intentional or deliberate. He submits that the court

ought to have adopted a liberal approach and condoned the delay.

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6. While vehemently opposing the Petition, learned Counsel for

the Respondent submits that the Petitioners were well aware about

the progress of the suit. She contends that failure to participate and

or contest the the proceeding was deliberate and intentional. She

contends that the Petitioners have not made out sufficient cause and

hence the application has been rightly rejected. She has relied

upon the decisions of the Apex Court in Basavraj & Ors. vs.

Special Land Acquisition Officer in Civil Appeal No. 6974 of

2013; and Pundalik Jalan Patil (D) by Lrs. vs. Executive

Engineer , Jalgaon Medium Project & Anr. SLP (C ) 21011-21014

of 2007.

7. In Basavraj (supra), the challenge was to the dismissal of the

appeal under Section 54 on the ground of limitation. In the said

case, the delay in filing the appeal was of 5 ½ years and the only

ground was that one of the Appellants had taken ill. While

considering the issue, the Apex Court observed that the judgments

which condoned the delay without considering the most relevant

factor i.e. 'sufficient cause' only on the condition that the Applicant

would not be entitled for interest for the delayed period, cannot be

approved.

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8. The Apex Court while considering the issue has held that

where the case is presented in Court beyond limitation, the

applicant has to explain as to what was the sufficient cause which

prevented him from approaching the court within limitation. It was

held that in case the party is found to be negligent or for want of

bonafide on his part in the facts and circumstances of the case, or

found to be acting indigently or remained inactive, there cannot be

justifying ground to condone the delay. No court could be justified

in condoning such an inordinate delay by imposing any condition

whatsoever. It was held that the application for condonation of

delay has to be decided only within the parameters laid down by the

court in regard to the condonation of delay, and in case there was no

sufficient cause to prevent the litigant to approach the Court in time,

the condoning the delay without any justification putting any

condition whatsoever, amounts to passing an order in violation of

statutory provisions and it tentamounts to utter disregard to the

legislature.

9. It may be mentioned that in the subsequent decision a three

Judge Bench of the Hon'ble Supreme Court in Ningappa Thotappa

Angadi vs. The Spl. Land Acquisition Officer 2019 SCC Online

SC 1611 after referring to the previous decisions in Dhiraj Singh

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(deceased) through Lrs vs. State of Haryana 2014 (9) Scale 441 &

Imrat Lal & Ors. vs. Land Acquisition Collector & Ors. 2014 (9)

Scale 446 has held that the Court should take liberal approach in

such matters and grant compensation with a condition that the

applicants would not be entitled to interest for the delayed period.

10. In Pundalik J. Patil the challenge was to the Order dated

22/23.08.2007 whereby the High Court had allowed the application

under Section 5 of the Limitation Act filed by the acquiring body

and condoned the delay of 1724 days in filing the appeal under

Section 154 of the Land Acquisition Act. While setting aside the

said order, the Apex Court has observed that the law of limitation in

founded on public policy. They are meant to see that the parties do

not resort to dilatory tactics, but avail the legal remedies promptly.

It was also held that public interest is a paramount consideration in

exercising the courts discretion wherever conferred upon it by the

relevant statutes. Pursuing stale claims and multiplicity of

proceedings in no manner subserves public interest. It was also

held that dragging the land loosers to Courts of law years after the

termination of legal proceedings would not serve any public interest

and that settled rights cannot be lightly inferred with by condoning

inordinate delay without there being proper explanation of such

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delay on the ground of involvement of public revenue.

11. In Vasant Vitthal Gavand vs. Shantaram Tukaram Gavand &

Ors. (Writ Petition No.9929 of 2015) the Petitioner had challenged

the order passed by the District Judge condoning the delay in filing

the appeal subject to cost of Rs.15,000/-. This Court on the facts of

the case had held that the appellant was not a lay person who was

not ignorant of the legal procedure. This Court disbelieved the

contention of the appellant that his Advocate had not given him

proper guidance in respect of the case filed by the appellant and that

he was not informed about filing of the appeal.

12. These decisions are not applicable to the facts of the present

case. In the instant case, the delay is of one year and 28 days. The

records reveal that the Applicants are agriculturist coming from a

remote area. They had engaged a lawyer and were under an

impression that they would be represented in the Court by the

concerned lawyer. The Petitioners have stated that the Advocate

appointed by them did not inform them about the order, and/or

progress of the suit. There is no reason to disbelieve the said

statement as they had nothing to gain by remaining absent or not

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contesting the proceeding. It is well settled that the expression

'sufficient cause' must receive liberal construction so as to advance

substantial justice. In the instant case, the Respondents have not

attributed malafides. This is also not a case of deliberate inaction

or intentional delay or latches of bonafides. Hence, as a normal

rule, delay is required to be condoned. In my considered view, the

First Appellate Court ought not to have foreclosed the rights of the

parties by taking a rigid hyper technical view, rather the Court

ought to have taken a liberal and justice oriented approach by

compensating the respondents with costs for inconvenience caused.

13. Considering the above facts and circumstances, in my

considered view, the Petitioner has made out sufficient cause for

condoning the delay. Accordingly, the Petition is allowed, the

delay is condoned, however the same is subject to payment of cost

of Rs.15,000/-, to be paid to the Respondent within a period of three

weeks.

14. The parties to appear before the District Court on 26th April,

2021.

                                              (ANUJA PRABHUDESSAI, J.)


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