Bombay High Court
Moin Haji Iabal Akbani vs Liyakat Khasan Hakim on 23 February, 2021
Bench: C.V. Bhadang
21-iast-4239-21 in crast-4238-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION (ST) NO. 4239 OF 2021
IN
CIVIL REVISION APPLICATION (ST) NO. 4238 OF 2021
Moin Haji Iqbal Akbani ..Applicant
Vs.
Liyakat Hasan Hakim ..Respondent
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Mr. Raju D. Suryavwanshi, for the Applicant.
None for the Respondent.
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CORAM : C.V. BHADANG, J.
DATE : 23rd FEBRUARY 2021
P.C.
. This is an application for condonation of delay of 328 days in
filing the revision application challenging the concurrent orders
passed by the Courts below directing eviction of the applicant from
the suit premises.
2. The respondent landlord had filed a suit for eviction on the
ground of subletting the tenant carrying out material alterations,
reasonable and bonafide need of the landlord and non-user. The
learned Trial Court directed eviction on the ground of subletting and
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alterations. There were two appeals arising out of the decree passed
by the Trial Court one each by the tenant and the other by the
landlord. The landlord challenged the refusal of the eviction decree
on the ground of reasonable and bonafide need and non user. It
appears that the First Appellate Court by the impugned judgment
and decree dated 24/1/2019 dismissed the appeal filed by the
appellant and partly allowed the cross objection. The net result is
that now there is a decree of eviction also on the ground of
reasonable and bonafide need of the landlord.
3. I have heard the learned counsel for the applicant. Perused
record.
4. It appears that after the impugned judgment and decree was
passed on 24/1/2019, the certified copy was applied for on
4/1/2020. The certified copy was delivered on 7/1/2020 and the
present revision application alongwith application for condonation
of delay came to be filed on 17/2/2021 resulting into a delay of 328
days.
5. The learned counsel for the applicant submitted that on
account of suspension of the physical Court hearing and on account
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of the illness of the applicant, no steps could be taken to challenge
the impugned judgment and decree within time. He therefore
submits that the applicant has made out a 'sufficient cause', for
condonation of delay. The learned counsel also made an attempt to
advert to the merits. It is submitted that there is no evidence on the
ground of requirement of the landlord for reasonable and bonafide
occupation. Except these, there are no other contentions raised.
6. I have considered the circumstances and the submissions
made.
7. The Supreme Court in the case of Esha Bhattacharjee v/s.
Managing Committee of Raghunathpur Nafar Academy and Ors.
(2013) 12 SCC 549 taking note of several decisions holding the
field, has culled out the principles which are germane, while dealing
with the plea of condonation of delay. It has been inter alia held that
although the Courts can take a liberal view in a matter of delay of
short duration, the cases where there is a gross or substantial delay,
require a stricter approach. It has also been held that in the absence
of the sufficient cause being shown, or the explanation offered is
either concocted or fanciful, the delay cannot be condoned so as to
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expose the adversary to a further litigation. The principles which
are culled out in para 21 and 22 may be stated thus-
Para 21- From the aforesaid authorities the principles
that can broadly be culled out are:
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.
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.
iii) Substantial justice being paramount and pivotal
the technical considerations should not be given
undue and uncalled for emphasis.
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.
v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
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.
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vii) The concept of liberal approach has to encapsule
the conception of reasonableness and it cannot be
allowed a totally unfettered free play.
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.
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.
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.
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.
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.
xiii) The State or a public body or an entity
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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: -
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.
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.
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.
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.
8. Coming to the present case, admittedly there are no
documents produced about the medical condition or the illness
of the applicant. Even the ground of lockdown and subsequent
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suspension of the Court working cannot be accepted. Such
suspension was from the third week of March 2020. The record
discloses that certified copy itself was applied after a period of
one year i.e. on 4/1/2020. The certified copy was received on
7/1/2020 that is much before the suspension of the physical
Court hearings. Even during the period from March 2020
onwards, urgent matters were being heard via virtual hearing.
In my considered view, in the absence of any material to show
or to establish the ground of illness and the ground based on the
suspension of the Court working, the applicant has failed to
make out a 'sufficient cause' for condonation of delay. The
landlord is seeking possession from the year 1999 and present
revision application came to be filed with the application for
condonation of delay only when the Executing Court has issued
a warrant for possession. In my considered view, no case for
condonation of delay is made out. In the result, the civil
application is dismissed. Consequently, the registration of the
revision application stands refused.
C.V. BHADANG, J.
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