Vijay Badridas Bairagi Alis Vijay ... vs Shri. Sanjay Vishnudas Bairagi ...
2023 Latest Caselaw 1999 Bom

                                                               913.CAS.458.20.doc


 Harish

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                    CIVIL APPLICATION NO.458 OF 2020
                                   IN
                   SECOND APPEAL (ST) NO.21778 OF 2019

 Vijay Badridas Bairagi @
 Vijay Bansidas Bairagi                      ...Applicant/Appellant

       Versus
 Shri. Sanjay Vishnudas Bairagi & Ors. ...Respondents

 Mr. Rahul D. Motkari, for the Applicant/Appellant.
 Ms. Pranita P. Hingmire, for the Respondent Nos. 1, 2, 4A, to
 4C & 5.

                               CORAM : MADHAV J. JAMDAR, J.

DATE : 1st MARCH, 2023

P.C.:

1. Heard Mr. Rahul D. Motkari, learned counsel appearing for

the Applicant and Ms. Hingmire, learned counsel appearing for

the Respondent Nos. 1, 2, 4A to 4C & 5.

2. The Civil Application is taken out for condonation of delay of

466 days in fling the Second Appeal. The impugned Judgment

and Decree of the learned First Appellate Court is dated 2 nd

January, 2018. The Applicant applied for the certifed copy of the

same on 5th January, 2018 and the certifed copy was ready on

23rd January, 2018 and received by the Applicant on 2 nd

February, 2018. The reasons given for condonation of delay are in

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paragraph Nos. 11 and 12 of the Civil Application, which reads as

under :

"11. The Applicant is a person of small means living in a small village. He does not have any regular source of income and is a poor man and is in fnancial hardhsip. The Applicant is presently doing the job of a driver. The Applicant has to shoulder the entire responsibility of his son and daughter who are taking education. The Applicant is also looking after his amother in law who is mentally unsound and under medical treatment.

12. The Applicant was short of funds for the fling of the Appeal. Still he somehow arranged for the funds to fle the Appeal and has thus fled the Appeal in this Hon'ble Court without any further delay. The Applicant state that he is unaware of the legal niceties and also had to arrange for the money to fle the appeal."

3. The dates on which the impugned Judgment and Decree was

passed and the certifed copy was applied on, clearly shows that

the Applicant is deligent. The Applicant in the delay condonation

application stated that, he is staying in a small village and he does

not have any regular source of income. He is doing the job of

driver and has to shoulder the responsibility of his son and

daughter who are taking education. He also stated that, he has to

look after his mother-in-law who is mentally unsound and under

medical treatement.

4. Affdavit in reply dated 10th August, 2022 is fled by

Respondent No. 1 to oppose the present Civil Applicantion.

However, it is signifcant to note, that the details of fnacial

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hardships which the Applicant has set out in paragraph No. 11

and 12 are not specifcally denied by the Respondents. It is only

contended that, the Court fee is of only Rs. 600/- and therefore,

there can not be delay in fling Appeal due to fnacial hardship and

the said reason is not the genuine reason. However, for fling

Appeal apart from Court fee, other expenses, professional charges

are also required. Therefore, there is no substance in the

contentions raised by the Respondents in the affdavit-in-reply.

5. Ms. Hingmire, learned counsel appearing for the

Respondents has relied on certain Judgments of Supreme Court.

She relied on the judgment in the matter of Ajay Dabra Vs. Pyare

Ram & Ors1 and particularly in paragraph No. 10 of the said

judgment. The said paragraph No. 10 reads as under :-

"10.This Court, while emphasizing the scope of Section 5 of the limitation Act, in the case of Mahant Bikram Dass Chela versus Financial Commissioner, Revenue, Punjab, Chandigarh and Others, (1977) 4 SCC 69 has held :

"21. Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day's delay. These and similar considerations which infuence the decision of Section 5 applications are out of 1 2023 SCC Online SC 92.

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place in cases where the appeal itself is preferred within the period of limitation but there is an irregularity in presenting it. Thus, in the instant case, there was no occasion to invoke the provisions of Section 5, Limitation Act, or of Rule 4, Chapter I of the High Court Ruels. If the Division Bench were aware that Rule 3 of Chapter 2-C is directory, it would have treated the appeal as having been fled within the period of limitation, rendering it inapposite to consider whether the delay caused in fling the appeal could be condoned."

This Court in the case of Basawraj and Another versus Special land Acquisition Offcer, (2013) 14 SCC 81 while rejecting an application for condonation of delay for lack of suffcient cause has concluded in paragraph 15 as follows :

"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "suffcient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fde on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justifed ground to condone the delay. No court could be justifed in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no suffcient cause to prevent a litigant to approach the court on time condoning the delay without any justifcation, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

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Therefore, we are of the considered opinion that the High Court did not commit any mistake in dismissing the delay condonation application of the present appellant."

(Emphasis added)

6. However, in the facts and circumstance of this case, this

Court has already found that the present Applicant is diligent

and he could not fle the Appeal within time due to severe

economic constraints. It is signifcant to note that, the

Respondents have not denied that the Applicant is residing in a

small village, the Applicant is working as a driver, the Applicant

has to shoulder responsibility of his school going children and his

mother-in-law is not well and therefore, the observations of the

Supreme Court in paragraph No. 10 are not applicable to the

present case. This is not a case where the Applicant is negligent

or his conduct is malafde.

7. Ms. Hingmire, learned counsel for the Respondents has also

relied on Judgment of Supreme Court in the case of Lingeswaran

Vs. Thirunagalingam2. She relied on paragraph No. 5 of the said

Judgment. The said paragraph No. 5 reads as under :-

"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the 2 Special Leave to appeal (C)Nos. 2054-2055 of 2022.

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learned trial Court that, even after fnding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of Popat Bahiru Goverdhane vs. Land Acquisition offcer, (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. The statutory provisions may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same."

(Emphasis added) The Supreme Court has observed that the Trial Court in that case

has observed that there are no merits in the delay condonation

application still the delay was condoned. In this case suffcient

reasons are given and therefore, the said decision of the Supreme

Court is not applicable to the present case.

8. Ms. Hingmire, learned Counsel for the Respondents also

relied on Judgment of Majji Sannemma @ Sanyasirao Vs. Reddy

Sridevi & Ors.3. She relied on paragraph No. 6.2. of the said

judgment. The said paragraph No. 6.2 reads as under :

"6.2We have gone through the averments in the application for the condonation of delay. There is not suffcient explanation for the period from 15.03.2017 till

3 2021 SCC Online (SC) 1260.

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the Second Appeal was preferred in the year 2021. in the application seeking condonation of delay it was stated that she is aged 45 years and was looking after the entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was fled in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously."

(Emphasis added) Thus, the Supreme Court has come to the conclusion in the above

case that, there is no suffcient explanation for a period of about

four years in fling the Appeal. In this case adequate explanation

is given. Therefore, the said Judgment is not applicable to the

facts of the present case.

9. Ms. Hingmire also relied on Judgment of Supreme Court in

University of Delhi Vs. Union of India & Ors. 4. She relied on

paragraph Nos. 20 and 21 of the said decision. The said

paragraph Nos. 20 and 21 reads as under :

"20. From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render evenhanded justice to the parties. Even in such case the condonation of long

4 (2020) 13 SCC 745

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delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "suffcient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800 per cent.

21. As against the same, the delay in the instant facts in fling the LPA is 916 days and as such the consideration to condone can be made only if there is reasonable explanation and the condonation cannot be merely because the appellant is public body. The entire explanation noticed above, depicts the casual approach unmindful of the law of limitation despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before fling an appeal. In addition in the instant facts not only the delay and laches in fling the appeal is contended on behalf of the respondents seeking dismissal of the instant appeal but it is also contended that there was delay and laches in fling the writ petition itself at the frst instance from which the present appeal had arisen. In that view, it would be necessary for us to advert to those aspects of the matter and notice the nature of consideration made in the writ petition as well as the LPA to arrive at a conclusion as to whether the High Court was justifed.

(Emphasis added)

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In the above case, the Supreme Court has held that liberal

approach is required to be taken in the matter of condonation of

delay and ultimate consideration must be that evenhanded justice

is rendered to the parties. The said observations of the Supreme

Court are in fact supporting the case of the Applicant. Apart from

that in the present case proper and suffcient explanation is

given.

10. Therefore, there is no substance in the contentions raised

by the Respondents. The Civil Application is allowed in terms of

prayer clause (a).

11. The Civil application is disposed of in above terms with no

order as to costs.

(MADHAV J. JAMDAR, J.)