Suresh Shivduttsingh Bhadoria ... vs Savitridevi Shivduttsingh ...
2022 Latest Caselaw 1528 Bom

                                                  IAST-98447-2020

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

          INTERIM APPLICATION (STAMP) NO. 98447 OF 2020
                               IN
              FIRST APPEAL (STAMP) NO. 98446 OF 2020


Suresh Shivduttsingh Bhadoria
(Since deceased through LRs.)
1A- Sonal Suresh Bhadoria and Ors.                ... Applicants

IN THE MATTER BETWEEN

Suresh Shivduttsingh Bhadoria
(Since deceased through LRs.)
1A- Sonal Suresh Bhadoria and Ors.                ... Appellants
               Versus
Savitridevi Shivduttsingh Bhadoria
(since deceased)
Sushma Vedprakashsingh Rathore                    ... Respondent.

Mr. Shyam Dewani a/w Mr. Mihir Govilkar a/w Mr. M. Sanghai a/w Mr.
Paarth Singh i/b Govilkar & Associates LLP, for the Applicants/
Appellants.

Mr. Vishal Ghosalkar, for the Respondent.


                                      CORAM :     V. G. BISHT, J.
                                RESERVED ON : 1st February, 2022.
                             PRONOUNCED ON : 15th February, 2022.

ORDER

The present application is filed by the applicants/appellants , who

are the original defendants, seeking condonation of delay in filing the

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present Appeal challenging the Judgment and Decree dated 5 th April,

2019 passed by the City Civil Court, Bombay in Suit No. 8321 of 1998

( High Court Suit No. 4074 of 1998).

2 According to applicants, after passing the ex-parte impugned

Judgment and Decree dated 5th April, 2019, they took out a Notice of

Motion No. 3321 of 2019 supported by affidavit, praying: (a) the delay

in filing if any of the Notice of Motion be condoned, (b) the ex-parte

Judgment and Order dated 5th April, 2019 be set aside and the matter be

heard on merits, (c) no cross-examination order dated 19 th January,

2019 be recalled and set aside and they be permitted to cross-examine

the plaintiff's witness and (d) that order dated 2 nd February, 2019

forfeiting the right of the appellants to lead evidence, be recalled and set

aside and they be permitted to lead evidence in the matter.

3 The said Notice of Motion was contested and ultimately by a

Judgment and Order dated 4 th November, 2020 the said Notice of

Motion was dismissed. Therefore, feeling aggrieved by the Judgment

and ex-parte Decree 5th April, 2019, the applicants herein have preferred

the First Appeal.

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                                                   IAST-98447-2020

4      According to applicants, since they were pursuing their remedy

which was also available along with the remedy of filing of Appeal

against the ex-parte Judgment and Decree dated 5 th April, 2019, the

Appeal was not preferred. They were pursuing the remedy of the

application to set aside the ex-parte decree bonafidely and honestly and

as per the legal advise, it took some time to have the application to set

aside the ex-parte decree adjudicated.

5 The applicants lastly contends that however, if this Court come to

the conclusion that there is some delay in fling the First Appeal, the

same deserves to be condoned in view of the circumstances as claimed.

There were no latches or negligence on the part of the applicants in

filing the Appeal.

6 The respondent, on the other hand, opposed the application by

filing her reply and has denied all the contentions of the application.

She denies that the applicants/appellants were bonafidely pursuing the

available remedy of filing the Notice of Motion to set aside the Decree as

even that remedy was taken after a delay and the same came to be

dismissed basically on the ground of delay and absolute negligence on

the part of the applicants/appellants.

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                                                   IAST-98447-2020

7      The respondent has also denied the explanation given in respect of

the collection of certified copies etc. and contended that even there was

gross delay of about 584 days after excluding the delay period. It is

lastly contended that the delay is not properly explained and rather, the

applicants/appellants are only interested in prolonging the matter. In

the circumstances, the application deserves to be dismissed with costs.

8 Learned Counsel for the applicants/appellants and the respondent

have reiterated submissions in the light of their respective pleadings.

Learned Counsel for the applicants/appellants has placed reliance in

Bhivchandra Shankar More vs. Balu Gangaram More and Others 1, N.

Mohan vs. R. Madhu,2 Hemlata Verma vs. M/s ICICI Prudential Life

Insurance Co. Ltd. & Anr.3 and Collector, Land Acquisition, Anantnag

and Another vs. Mst. Katiji and Others4. Similarly, learned Counsel for

respondent has also placed reliance in Union of India and Ors. vs.

Nripen Sarma5, P. K.Ramchandran vs. State of Kerala & Anr. 6, B. Madhuri

Goud vs. B. Damodar Reddy7, Kanta @ Shanti w/o Subhash Karkale vs.

Manulabai @ Kholki w/o Haribhau Tarare and Anr. 8 and Narayansingh

1 (2019) 6 Supreme Court Cases 387 2 2019 SCC Online SC 1497 3 2910(5)RCR(Civil) 4 (1987)2 Supreme Court Cases 107.

5 AIR 2011 Supreme Court 1237 6 AIR 1998 Supreme Court 2276, 7 (2012) 12 Supreme Court Cases 693 8 2020 (1) Mh. L. J. 918

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s/o Omkarsingh and Anr. vs. Aruna wd/o Shyamrao Patil and Anr.9

9 Before I tread on and decided the issue either way (condonation

of delay), let me note some pronouncements relevant to the cause in

hand.

10 The Hon'ble Apex Court in Collector, Land Acquisition, Anantnag

and Another (Supra) made following observations at para 5:

Para 5: " The legislature has conferred the power to condone

delay by enacting Section 51 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:-

9    2020(3) Mh. L. J. 206

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                                                    IAST-98447-2020

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 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."

11 In B. Madhuri Goud vs. B. Damodar Reddy(supra), the Hon'ble

Apex Court held as under:

The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a

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meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years Courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay."

12 Similarly, in Basawraj and Anr. vs. Special Land Acquisition

Officer10 the Hon'ble Apex Court in categorical terms held that the

discretion to condone the delay has to be exercised judiciously, based on

facts of each case. The term "sufficient cause" cannot be liberally

interpreted if there is negligence, inaction or lack of bonafides attributed

to the party. Therefore, on the basis of given facts of the case, the cause

advanced has to be decided judiciously.

13 There is no dispute on the factual score. The impugned ex-parte

judgment and decree was passed on 5 th April, 2019. The Notice of

Motion was taken out on 26th August, 2019 with various prayers as

noted herein-above and obviously since it was beyond the period of

limitation there was prayer of applicants to condone the delay, if any, in

filing the Notice of Motion. However, it appears from the record that the

learned Judge was not satisfied with the submissions of learned Counsel

10 2013 MhLJ Online (S.C.) 39 = (2013) 14 SCC 81,

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for the applicants and therefore, the said Notice of Motion eventually

was rejected on 4th November,2020. After rejection of the said Notice of

Motion now the applicants have come in Appeal with a prayer that the

delay be condoned.

14 In Bhivchandra Shankar More (Supra) the Hon'ble Apex Court has

held that delay occasioned in filing of First Appeal due to pursuing

remedy under Order 9 Rule 13 and time spent therein can be considered

as sufficient cause for condonation of delay provided there is no dilatory

tactic or lack of bonafides on the part of applicant.

15 In the instant case, there is no dispute that the applicants were

pursuing the remedy as provided under Order 9 Rule 13 for setting aside

the ex-parte Judgment and Order dated 5th April, 2019. Undoubtedly,

there was some delay in pursuing that remedy and that is why the

applicants had prayed in their Notice of Motion to condone the delay,

however, their contentions did not find favour with the learned trial

Judge and who eventually dismissed the Notice of Motion.

16 In the light of pronouncements noted herein-above, it can very

well be culled out that rules of limitation are not meant to destroy the

rights of the parties. They are meant to see that the parties do not resort

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to dilatory tactics, but they seek their remedy with all promptitude. The

object of providing a legal remedy is to repair the damage caused by

reason of legal injury. The law of limitation fixes a lifespam for such

legal remedy for the redress of the legal injury so suffered.

17 Essentially speaking, condoning delay in filing of Appeal has to be

considered liberally. The only requirement is the satisfactory and

specific explanation of delay. Even the judgments cited (supra), by

learned Counsel for the respondent, though distinguishable on facts,

show that merely because of delay is huge one, the same cannot be a

ground for refusing to condone delay if plausible explanation is given to

substantiate it.

18 Moreover, the dispute between the parties is in respect of

immovable properties where the rights of parties are involved. It is also

seen from the impugned order of the trial judge that the present

applicants/appellants are in possession of the suit flats and even have

been directed to quit, vacate and remove themselves with their

belongings therefrom.

19 Having regard to the valuable rights of the parties and as also the

nature of suit property, in my considered view, it is always desirable to

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set at rest the controversy on merits one or the other way. The cause of

substantial justice must be borne in mind and it should not be allowed to

be defeated at any cost.

20 For the aforesaid reasons, the following order is passed:

ORDER

1. Delay is condoned.

2. Appeal be numbered.

3. Application stands disposed of accordingly.

(V. G. BISHT, J.) REKHA PRAKASH PATIL

Digitally signed by REKHA PRAKASH PATIL Date:

2022.02.15
12:48:15 +0530




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