Bombay High Court
Nandkishor Prabhakar Wadagale ... vs Surjitkaur Mahendrasing Muchak ... on 11 February, 2021
Bench: R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 555 OF 2020
IN
CIVIL REVISION APPLICATION NO. 197 OF 2019
Nandkishor Prabhakar Wadagale
Died through L.Rs.
1] Vilasini Nandkishor Wadagale and others ... Applicants
Versus
Surjitkaur Mahendrasing Muchal and others ... Respondents
....
Mr. A. S. Kulkarni, Advocate for the applicants
Mr. S. S. Patil, Advocate for respondent Nos. 1 and 3
....
CORAM : R. G. AVACHAT, J.
DATED : 11th FEBRUARY, 2021
PER COURT :-
. This is an application for condonation of delay of 287
days in preferring civil revision application for challenging order
dated 17.04.2018 passed by the Court of Civil Judge, Junior
Division, Aurangabad, on Exh.43 in Regular Darkhast (execution
proceeding) No.454 of 2000.
2. The applicants are the legal representatives of the
original judgment debtor. The respondents are legal representatives
of the original decree holder. It was a suit, being Regular Civil Suit
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No. 546 of 1988 filed for specific performance for agreement for sale
of agricultural land. The suit was decreed on 06.03.1990. The decree
has been put to execution. The applicants appeared in the execution
proceedings and raised objection under Section 47 of the Code of
Civil Procedure by preferring application Exh.43. The executing
Court rejected the application vide order dated 17.04.2018. The said
order is sought to be challenged in this revision application.
3. Heard.
There is delay of 287 days in preferring the revision
application. It has been averred in para 3 of the application that
learned Advocate representing the applicants in the execution
proceedings did not inform them about the order below Exh.43 till
the end of December - 2018. It is only on inquiry made with the
Advocate, they came to know about the impugned order in
December-2018. The applicants therefore appointed another
Advocate and applied for certified copies of necessary documents on
26.03.2019. The certified copies were received on 03.04.2019. There
is no intentional delay.
4. Learned Advocate for the applicants made submissions
consistent with the pleadings in the application.
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5. On the other hand, learned Advocate for the respondents
submitted that the decree dates back to 1990. With a view to delay
the execution of the decree and deprive the respondents of the fruits
of the decree, the application under Section 47 of the Code of Civil
Procedure was moved. The averments in the application are denied
in toto. The delay has not been satisfactorily explained. He,
therefore, urged for rejection of the application.
6. It is a decree for specific performance of agreement for
sale. The said decree is said to have been passed exparte. The
applicants appeared in the proceedings initiated for execution of the
decree and raised an objection under Section 47 of the Code of Civil
Procedure. The executing Court rejected the application. In para 3 of
the application, it has been stated that the concerned Advocate did
not inform the applicants of the date of decision on application
Exh.43. As such, delay is said to have been occurred due to
negligence of the Advocate representing the applicants before the
executing Court, time spent in obtaining certified copies etc.
7. True, there is some delay in preferring the civil revision
application.
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8. The Apex Court in the case of Collector, Land Acquisition
Anantnag and another vs. Mst. Katiji and others reported in AIR
1987 SC 1353, has observed thus:
"3. The legislature has conferred the power to condone
delay by enacting S.5 of the Indian Limitation Act of 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 realized 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
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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 legalize injustice on
technical grounds but because it is capable of
removing injustice and is expected to do so."
9. With a view to give the applicants an opportunity of
hearing and in the interest of justice, the civil application is allowed,
subject to cost of Rs.10,000/- to be paid to the respondents in/before
the executing Court.
[ R. G. AVACHAT, J. ]
SMS
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