Shafi Yakub Pathan And Others vs Akbar Ramjan Pathan And Others
2021 Latest Caselaw 11652 Bom

                                                                         ca-6021-2015.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                         CIVIL APPLICATION NO.6021 OF 2015
                                IN SAST/13120/2014

             SHAFI YAKUB PATHAN AND OTHERS
                         VERSUS
AKBAR RAMJAN PATHAN DIED THR. LRS. NASIR AKBAR PATHAN AND
                         OTHERS

                                         ...
                 Mr. R. B. Narwade Patil, Advocate for applicants.
               Mr. R. R. Karpe, Advocate for respondent Nos.2 and 4.
                                         ...

                                    CORAM           : SMT. VIBHA KANKANWADI, J.

Reserved on : 04.08.2021 Pronounced on : 24.08.2021

ORDER :-

. Present application has been filed for getting the delay of 1649

days condoned in filing Second Appeal.

2. Applicants are the original plaintiffs, who had filed Regular Civil

Suit No.99 of 2001 for declaration and injunction and they were the

defendants in Regular Civil Suit No.193 of 1986, which was filed against

them for declaration and consequential relief of injunction by present

respondents. The suits were filed before the learned Joint Civil Judge

Junior Division, Shrigonda. Regular Civil Suit No.193 of 1986 was

dismissed and Regular Civil Suit No.99 of 2001 was decreed on

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19.12.2005. The defendants in Regular Civil Suit No.99 of 2001 and the

plaintiffs in Regular Civil Suit No.193 of 1986 filed two separate appeals

i.e. Regular Civil Appeal No.47 of 2006 and Regular Civil Appeal No.48

of 2006 before the learned District Court, Ahmednagar. Both the

appeals were heard by learned District Judge-5 and by common

judgment, Regular Civil Appeal No.47 of 2006 was dismissed, however,

Regular Civil Appeal No.48 of 2006 was allowed. The judgment and

decree passed in Regular Civil Suit No.99 of 2001 on 19.12.2005 was set

aside. The said suit was dismissed and, therefore, present applicants

intend to challenge the decree of the learned first Appellate Judge

dismissing their suit, however, there is delay as aforesaid.

3. Heard learned Advocate Mr. R. B. Narwade Patil for the applicants

and learned Advocate Mr. R. R. Karpe for respondent Nos.2 and 4.

4. It has been vehemently submitted on behalf of applicants that the

judgments were pronounced on 20.07.2010 and they had applied for

certified copies on 23.07.2010. They received it on 11.08.2010.

Thereafter, applicant Nos.4 and 5 expired and, therefore, family was

disturbed. They could not contact their Advocate. Thereafter, applicant

No.1, who was looking after the matter, was frequently remaining ill due

to disturbed family condition. They are poor labourers and due to

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financial crisis, they could not arrange for the money to file second

appeal. The delay is unintentional. Their vital rights are involved, as

the learned Trial Judge had held them owner of the property and

restrained the defendant from disturbing their possession, however, the

learned First Appellate Court has reversed that decree. Liberal approach

is required to be taken to condone the delay.

5. Learned Advocate for the applicants relied on the decision in

Improvement Trust, Ludhiana Vs. Ujagar Singh and Ors., (210 DGLS

(SC) 407), wherein it has been observed that, "the Courts should not

take hyper-technical approach for rejecting an application for

condonation of delay. Attempt should always be made to allow the

matter to be contested on merits rather than to throw it on such

technicalities." He further relied on the decision in State of Nagaland

Vs. Lipok AO, (2005 DGLS(SC) 311), wherein it has been observed that,

"what counts is not the length of the delay but the sufficiency of the

cause and shortness of the delay is one of the circumstances to be taken

into account in using the discretion. Application under Section 5 of the

Limitation Act are to be construed liberally so as to do substantial justice

to the parties. Otherwise, it would deprive a party from approaching the

justice."

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6. Per contra, learned Advocate for respondent Nos.2 to 4 submitted

with the support of affidavit-in-reply filed on behalf of respondents, that

no explanation is afforded to condone the delay. When the applicants

had received certified copies on 11.08.2010, then they ought to have

immediately approached this Court.

7. At the outset, it is to be noted that it appears that the learned

Advocate for applicants has filed the application in haste or not on the

basis of full information and that lacuna has not been tried to be

removed since 2015 till today. It is only stated that applicant Nos.4 and

5 have expired. Neither their death certificates have been produced on

record, nor the fill in the blank in respect of date of death in the title of

the application has been filled. In the body of the application also, the

date of death has not been given. It is merely stated that thereafter

applicant Nos.4 and 5 died. The another ground that has been tried to

be raised is illness of applicant No.1. Neither the specific ailment has

been stated, nor it is supported by medical certificate. The application is

as aforesaid very loosely drafted and it cannot be said that it is in any

way explaining or elaborating the reason for the delay of 1649 days.

8. The ratio laid down in both the above said authorities cannot be

relied, however, it is to be noted that in Improvement Trust, Ludhiana

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(Supra), the delay was of only two months and in State of Nagaland Vs.

Ujagar Singh (Supra), it is only 57 days. Taking into consideration the

duration of the delay, that was involved in the case, Hon'ble Supreme

Court has taken the above said view and has stated in State of Nagaland

Vs. Ujagar Singh (Supra), that sufficiency of the cause would count the

length of the delay. Here, the necessary particulars have not been

pleaded, not supported by documentary evidence. When the matter is

pending for about six years with no attempt on the part of the applicants

to correct the mistakes, it shows the negligence on the part of the

applicants. Further, it will not be out of place to mention here that

applicants had filed Civil Application No.2286 of 2015 before this Court

for setting aside Registrar's order dated 13.08.2014 i.e. even prior to the

delay condonation was registered and it was only on stamp number. It

appears that there was a conditional order passed by the learned

Registrar (Judicial) refusing the registration of the appeal for non

removal of office objections, then for getting that order passed by the

learned Registrar (Judicial) dated 13.08.2014 also, there was delay of

170 days and, therefore, that application was filed. It was allowed by

this Court on 27.02.2015 subject to deposit of cost of Rs.1000/-. If the

delay is caused frequently, then it cannot be said that the party is in any

way acting bonafidely. No proper much less sufficient reason has been

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shown to exercise the discretion in favour of the applicants and to

condone the delay. Application, therefore, stands rejected.

[SMT. VIBHA KANKANWADI, J.]

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