Shri. Kundan @ Yashwant Rakhmaji ... vs Mohol Nagari Sahakari ...
2021 Latest Caselaw 2482 Bom

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Jitendra   by Jitendra S.
           Nijasure
S.         Date:
Nijasure   2021.02.09
           18:04:57 +0530
                                                             14-caf-1978-2019.doc

   jsn

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                              CIVIL APPLICATION NO.1978 OF 2019
                                               IN
                              FIRST APPEAL (ST.) NO.27067 OF 2015


         Shri Kundan @ Yashwant Rakhmaji                     ...Applicant /
         Gund                                                Petitioner

                   Versus

         Mohl Nagar Sahakari Patpedhi Sanstha                ...Respondents
         Mar. Mohol & Ors.

                                            ----------
         Mrs. Kavita Shinde, i/b. Ashok B. Tajane for the Applicant.
         Mr. Suhas Suresh Inamdar for Respondent No.1.
         Mr. S.P. Rajepandhare for Respondent Nos.2 to 4.
                                            ----------

                                            CORAM :        K.K. TATED &
                                                           R.I. CHAGLA, JJ.

                                            DATE         : 8TH FEBRUARY, 2021

         ORDER :

1. Heard learned Counsel for parties.

2. By this Civil Application, the Applicant original objector

is seeking condonation of one year and four months delay in

filing the First Appeal challenging the judgment and award

dated 1st April, 2014 passed by the 2nd Joint Civil Judge, S.D.,

14-caf-1978-2019.doc

Solapur in LAR No.1 of 2013.

3. Learned Counsel Mrs. Kavita Shinde appearing for the

Applicant submits that in the present proceeding, the

Respondent No.1 - Patpedhi filed reference under Section 3(H)

(4) of the National Highways Act, 1956 (for short "the said

Act") to resolve the dispute as to the apportionment of the

compensation granted by Special Land Acquisition Officer No.5,

towards acquisition of land Gat No.1146 admeasuring 8300 sq.

mtrs situated at village Mohol, Dist. Solapur. She submits that

in the present proceeding the Respondent Nos.2 to 4 agreed to

pay sum of Rs.60 lacs to the Respondent No.1 against recovery

of loan amount from the amount of compensation awarded by

SLO. Therefore, the Respondent No.1 filed a reference under

Section 3(H) (4) of the said Act. She further submits that in

that reference the Applicant has filed application to object, to

apportionment of the compensation to Respondent No.1. She

submits that after hearing both parties the Reference Court

framed the following issues:-

Sr.                      Issues                         Findings
No.
 1    Whether objector proves that acquired land   In the Negative.

Gat No.1146 /12 is his ancestral property?

14-caf-1978-2019.doc

2 Whether objector proves that he is having In the negative. right, title and interest over acquired land and having share over the acquired land? If yes, to what extent?

3 Whether objector is entitled to receive In the negative. compensation amount against the acquired land?

4 Who is / are person(s) entitled to receive the Applicant and amount of compensation of acquired land? Opponent Nos.1 to 3.

 5   How amount of compensation of acquired          As per final
     land is to be appointed?                        order.
 6   What Order?                                     As per final
                                                     order.

4. Learned Counsel for the Applicant submits that the

reference Court come to the conclusion that the Applicant is

not entitled for any compensation in respect of the said

acquired land. Hence they filed a present First Appeal.

5. Learned Counsel appearing for the Applicant submits that

as soon as the reference Court passed a judgment and award

dated 1st April, 2014, they immediately applied for certified

copy on 5th April, 2014. She submits that the certified copy

was ready on 22nd May, 2014. Thereafter they filed First

Appeal in this Court on 1st October, 2015.

6. Learned counsel for the Applicant submits that, the

14-caf-1978-2019.doc

Applicant has immediately contacted the Advocate at Mohol. At

that time the said Advocate gave the opinion that in the above

matter, there are no chances of success. Thereafter the

Applicant contacted another Advocate at Solapur on 5th

September, 2015. The said Advocate advised to file Appeal.

7. Learned Counsel for the Applicant submits that due to the

order of Reference Court, the Applicant suffered a shock.

Therefore it remained on his part to take immediate steps. In

support of her contention the learned Counsel for the Applicant

relies upon paragraphs 2 (D), (F) and (G) of the Civil

Application, which read thus:-

"(D) The Applicant states that the Applicant was suffered a shock after the above Judgment and Decree and therefore, could not come out of the said shock immediately. The Applicant, therefore, could not contact his Advocate for getting the certified copies.

(F) Due to the financial condition of the Applicant, the Applicant could not take immediate steps. The certified copies were with the Advocate at Solapur. The Applicant contacted to the Advocates at Mohol who have gave the opinion that in the above matter there are no chances of success. Therefore, also the Applicant could not file the present Appeal immediately.

(G) The Applicant state that due to the short rainfall there is drought situation and there is no income from the agricultural land."

14-caf-1978-2019.doc

8. The learned Counsel for the Applicant submits that, in the

interest of justice, delay in filing First Appeal be condoned. She

submits that if the delay is not condoned, irreparable loss

would be caused to the Applicant as the Applicant is having

good points in the matter and the Applicant may succeed in the

above First Appeal.

9. On the other hand, learned Counsel Mr. Inamdar for

Respondent No.1 filed Affidavit in Reply dated 20th January,

2021. The same is taken on record.

10. Learned Counsel Mr. Inamdar appearing on behalf of

Respondent No.1 submits that there is no substance in the

present Civil Application and hence the same is required to be

rejected by imposing costs. He further submits that the

Applicant failed to disclose sufficient cause for condonation of

delay of one year and four months in filing First First Appeal.

11. Learned Counsel Mr. Rajepandhare appearing on behalf of

Respondent Nos.2 to 4 submits that there is no substance in the

present Civil Application and same is required to be dismissed

with costs.

12. We heard both the parties.

14-caf-1978-2019.doc

13. It is to be noted that in the present proceeding the main

dispute is between the Applicant and Respondent Nos.2 to 4.

The Respondent Nos.2 to 4 has not filed any Affidavit in Reply

in the present Civil Application, though same was duly served

on them. The Affidavit in Reply filed by the Respondent No.1, at

present cannot be considered because Respondent No.1 is

Patpedhi who has already received their loan amount from the

compensation awarded by the Special Land Officer.

14. It is to be noted that in a present proceeding, the

Applicant had taken the opinion from the Advocate at Mohol

for filing the First Appeal. However the said Advocate advised

not to file Appeal in the above matter as there were no chances

of success. Therefore, again on 5th September, 2015 the

Applicant contacted another Advocate at Solapur who advised

him to file Appeal in this Court. Therefore, the Applicant has

filed this First Appeal in this Court.

15. Apart from this it is to be noted that in the present

proceedings earlier the First Appeal stood dismissed by order

dated 19th September, 2017 passed by the Registrar (Judl. II)

for non compliance of office objection i.e. payment of Court fees.

Thereafter, the Applicant preferred Civil Application No.288 of

14-caf-1978-2019.doc

2019. That Civil Application was allowed by this Court vide

order dated 15th April, 2019.

16. It is to be noted that the Apex Court in the case of

N.Balkrishnan Vs. M. Krishnamurthy 1 held that the object of

fixing the time limit is not meant to destroy the rights. The law

of limitation fixes a lifespan for such legal remedy for the

general welfare. Paragraph Nos.11, 12 and 13 of the said

judgment read thus :

11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During effux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would

1(1998) 7 SCC 123

14-caf-1978-2019.doc

result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749.

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 and 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 for his loss."

17. Considering the submissions made by the learned Counsel

for the Applicant and the decision of the Apex Court, we are

satisfied that the Applicant has made out case for grant of delay

condonation application. However, at the same time the

Applicant has to pay the cost of Rs.5000/- to the Respondent

No.1 and Rs. 5,000/- to Respondent Nos.2 to 4. Hence the

following order is passed:-

(a) Civil Application is allowed in terms of prayer clause

14-caf-1978-2019.doc

(b) which reads thus:-

"(b) The delay of about 1 year and 4 months in filing the above First Appeal may kindly be condoned."

(b) The Applicant shall pay Rs.5,000/- by way of cost to the

Respondent No.1 and Rs.5000/- to Respondent Nos.2 to 4 on or

before 26th February, 2021, failing which the Civil Application

shall stand dismissed without reference to the Court.

(c) If amount is paid by the Applicant, the Applicant to place on

record the receipt of the same.

(d) Liberty granted to Applicant to prefer application for other

prayers and same will be decided on its own merits after

hearing both sides.

     [R.I. CHAGLA J.]                   [K.K. TATED, J.]