[email protected] Dondiram ... vs The Special Land Acquisition ...
2021 Latest Caselaw 15957 Bom

                                                                         67-caf-3923-2019-fast-14697-2019.doc




                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION

         Digitally
         signed by                        CIVIL APPLICATION NO. 3923 OF 2019
                                                          IN
         SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
TALEKAR  Date:                            FIRST APPEAL (ST.) NO.14697 OF 2019
         2021.11.18
         17:22:56
         +0530
                                                          IN
                                        LAND ACQUISITION CASE NO. 81 OF 2008

                      Dhondiram @ Dondiram Mahadev Pandre
                      @ Pandhare
                      (Since deceased) by L.Rs.
                      1a. Smt. Chandabai Dhondiram Pandre
                      @Pandhare & Ors.                                ...Applicants/
                                                                      Orig. Appellants
                                 vs.
                      1. The Special Land Acquisition Offcer
                      & 2 Ors.                                        ...Respondents

                      Mr.T.S. Ingale for applicants/appellants.
                      Mr.Y.Y. Dabake, AGP for respondent Nos.1 and 2.

                                             CORAM :       N. J. JAMADAR, J.
                                             DATE   :      17th NOVEMBER, 2021

                      P.C.:

                      1.       This is an application for condonation of delay of 5 years and

                      165 days in preferring the appeal against the judgment and award

                      in Land Acquisition Reference Case No. 81 of 2008, dated 22 nd

                      August 2013, passed by the reference Court, whereby the

                      reference preferred by the predecessor-in-title of the applicants,

                      namely, Dhondiram @ Dondiram Mahadev Pandre @ Pandhare

                      came to be dismissed, primarily on the ground that the claimant

                      and his Advocate did not turn up for leading evidence when the

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                                                          67-caf-3923-2019-fast-14697-2019.doc




reference was posted for hearing.

2.       The respondent No. 3, the acquiring body, has not entered

appearance despite service of notice of this application.

3.       Heard, the learned counsel for the applicants and the

learned AGP for respondent Nos.1 and 2.

4.       The learned counsel for the applicants submitted that

though there is a considerable delay in preferring the appeal, yet

in the peculiar facts of the case, where the reference fled by the

predecessor-in-title of the applicants came to be dismissed and

the reference preferred by the brother of the deceased claimant in

respect of the adjacent land came to be allowed by awarding

compensation           at    an    enhanced   rate,   the    application              for

condonation of delay deserves to be considered liberally. Attention

of the Court was invited to the averments in paragraph Nos. 5 and

6 of the application, whereby the applicants have made an

endeavour to account for the delay.

5.       Mr.Dabake,         the   learned   AGP   resisted   the       prayer         for

condonation of delay.

6.       It is well nigh settled that a reference cannot be dismissed

otherwise than on merits. In the case at hand, by the impugned

judgment and award, the reference court has dismissed the


Shraddha Talekar, PS                                                                    2/4
                                                       67-caf-3923-2019-fast-14697-2019.doc




reference primarily for the non-appearance of the learned

Advocate for the deceased claimant when the reference was posted

for hearing and the consequent default in adducing evidence in

support of the claim.

7.       It is trite that an application for condonation of delay should

receive       liberal   consideration.   The   overarching       principle          is

advancing the cause of justice by determining the matter on

merits, rather than on technicalities.

8.       In the case at hand, the averments in paragraph Nos. 5 and

6 of the application make out a suffcient cause. In any event, it

does not appear that there was deliberate inaction or want of

bonafde. It seems that on account of the adverse social condition

and poor fnancial condition, the deceased claimant and the

applicants could not pursue the matter effectively. A party cannot

be made to suffer for the inadvertence on the part of the Advocate.

9.       In the totality of the circumstances, especially having regard

to the fact that the reference has been dismissed otherwise than

on merits, it would be expedient to condone the delay.

10.      The learned counsel for the applicants fairly submits that in

the event, the appeal is allowed and compensation is awarded on

enhanced rate, the applicants will not claim interest for the period


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                                                      67-caf-3923-2019-fast-14697-2019.doc




commencing from the date of the impugned judgment and award,

till date.

11.      The statement is recorded.

12.      Hence, the following order :

                                         ORDER

(i) The application for condonation of delay stands

allowed.

(ii) The delay stands condoned.

(iii) The appeal be registered and listed for admission

after three weeks.

(N. J. JAMADAR, J.)

Shraddha Talekar, PS 4/4