Bombay High Court
Mandakini Pandurang Hajare vs Smt. Pushpa Purushottam Telrandhe on 21 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:33523
CA-3271-2018-1.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.3271 OF 2018
IN
FIRST APPEAL (ST) NO. 20973 OF 2018
Mandakini Pandurang Hajare ...Applicant
In the matter between
Pandurang Jairamji Hajare And Ors. ...Appellants
Versus
Pushpa Purushottam Telrandhe ...Respondent
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Adv. Sanjay Jain, Adv. Sheelang Shah, Adv. Ishwar Nankani, Adv. Bhakit Jain
i/b M/s. Nankani & Associates for the Applicant.
Adv. Girish Godbole, Senior Advocate a/w Adv. Adil Parsurampuria, Adv. Mehul
Rathod i/b Legal Vision and Rutuja Ambekar for the Respondent.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : July 16, 2024.
Pronounced on : August 21, 2024.
P. C. :
1. By this Civil Application, the Applicant seeks condonation of
delay of 1084 days caused in preferring the Appeal. There has been
serious opposition by the Respondent to the Application.
2. The Appeal has been filed challenging the ex-parte judgment
and decree dated 1st July, 2015 passed by the City Civil Court in Suit
No. 4130 of 2010. The suit was instituted by the Respondents for
specific performance of the Memorandum of Understanding dated
22nd July, 2000. The suit was initially filed in the High Court and upon
the pecuniary jurisdiction of the Civil Court being enhanced was
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transferred to the City Civil Court. The suit came to be decreed by the
impugned judgment dated 1st July, 2015 and the present Application
has been filed seeking condonation of delay of 1084 days caused in
filing the Appeal.
3. The application has been resisted by the Respondent by
affidavit of reply dated 16th October, 2018 to which rejoinder dated 7 th
March, 2019 was filed by the Applicant. It appears that during the
pendency of the proceedings, the original Applicant expired and the
legal heirs were brought on record.
4. The Applicant's contention in the Civil Application is that the
original Applicant was unaware of the transfer of the suit to City Civil
Court which was proceeded ex-parte on first day of listing. In or about
December, 2014 the original Applicant who was resident of Nagpur
visited his Advocate in Mumbai but did not receive any response and
subsequently the papers were returned by his Advocate. Upon
becoming aware of the transfer of the suit to City Civil Court, the
Applicant engaged another Advocate who filed Notice of Motion No.
176 of 2014 to set aside the ex-parte order dated 10th December,
2012. The Notice of Motion was dismissed by the City Civil Court by
order dated 30th January, 2014 and thereafter his Advocate stopped
appearing in the matter. It was contended that the original Applicant
was not aware or informed about the judgment and decree dated 1 st
July, 2015 passed by the City Civil Court.
5. It was contended that the original Applicant was about 91 years
old and was suffering from high blood pressure and problems of
vertebral column due to which he was confined to his bed at his
residence in Ramtek, Nagpur and could not move without support and
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assistance. Due to the original Applicant's age and illness the
Applicant was unable to keep track of the developments of the suit
and follow up with the Advocate. The Advocate despite assuring to
take care of the matter did not do so and did not keep the Applicant
informed. The Applicant became aware of the judgment and decree
dated 1st July 2015 in or about March, 2018 when the summons was
received from the Executing Court in Execution Application No. 622 of
2016. Upon inquiry with the Advocate, no satisfactory response was
received and therefore, the original Applicant appointed an Advocate
from Nagpur who appeared before the Executing Court and
thereafter certified copies were obtained. It was contended that for
the reasons stated, there is a delay of 1084 days caused in filing the
present Appeal and thus, no prejudice will be caused if the present
Application is allowed.
6. In the affidavit-in-reply, the Respondent has inter alia
contended that after the transfer of the suit to the City Civil Court, by
order dated 10th December, 2012, the suit was directed to proceed ex-
parte pursuant to which, affidavit of evidence was filed by the
Respondent on 29th June, 2013 and matter was adjourned to 22 nd July,
2023 and thereafter 23rd August, 2013 for arguments. Thereafter the
matter was listed on 3rd September, 2013, 25th September, 2013, 8th
October, 2013 and 30th October, 2013, however, the Applicant and his
Advocate remained absent. Subsequently, the matter was argued on
19th November, 2013 and was kept for the ex-parte judgment of 2nd
December, 2013 and thereafter on 20th December, 2013. On 16th
January, 2014, the Advocate for the Applicant appeared and tendered
the draft Notice of Motion for setting aside the order dated 10 th
December, 2012. After the pleadings were completed, arguments
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were advanced and on 4th March, 2014 the Applicant himself was
present in the Court and thereafter the matter was adjourned and on
5th May, 2014, the Applicant along with his advocate was present in
Court.
7. By order dated 30th January, 2015, the Notice of Motion filed by
the Applicant for setting aside the order dated 10 th December, 2012
was dismissed and the matter was adjourned for judgment on 9 th
February, 2015. Thereafter the Respondent filed a Transfer
application for transfer of the suit from Court Room No. 31 to Court
Room No. 10 as the Judge was transferred to Court Room No. 10. The
suit was decreed by judgment dated 1st July, 2015 and after receiving
the certified copy of the judgment and decree, the Respondent's
Advocate addressed notice dated 27th July, 2016 to the Applicant
forwarding a copy of the judgment. The said communication was
received by the Applicant which is evidenced from the postal receipts
and the acknowledgment and only upon the execution proceedings
being filed, the present Application has been taken out. It is further
contended that the Applicant has two adult sons who are looking
after the affairs of the properties as well as the two adult daughters
and therefore the age of the Applicant is immaterial.
8. In the rejoinder affidavit dated 10th February, 2014 filed by the
Applicant, it is inter alia contended that the letter dated 27th July,
2016 stated to have been sent by the Respondent to the Applicant
informing him about the judgment and decree of 1 st July, 2015 was
not received by him and the signature on the postal receipts is forged
as the Applicant was in hospital from 26 th August, 2016 to 29th
August, 2016. In support, the discharge papers of the hospital are
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annexed at Exhibit-C to the affidavit. It is further contended that his
children are not looking after his affairs and properties and due to his
age related ailments he could not track of the matter.
9. Heard Mr. Sanjay Jain, learned counsel for the Applicant and Mr.
Godbole, learned Senior Advocate for the Respondent.
10. Mr. Jain submits that the suit proceeded ex-parte based on the
Respondents Advocate's submission that the suit was placed in
undefended list which was incorrect statement. He submits that no
notice was issued by the City Civil Court to the Applicant and
therefore Applicant was unaware of the transfer of the suit. He would
further submit that suit was transferred to Court Room No. 31 and
was listed for ex-parte judgment on 2nd December, 2013 and becoming
aware of the same, the Applicant had engaged another Advocate who
filed the draft of Notice of Motion No. 176 of 2014 to set aside the
order dated 10th December, 2012. On 30th January, 2015, the learned
Judge dismissed the Notice of Motion by one page order which is
reflected in the rojnama. He submits that thereafter, the Judge was
transferred and Transfer Application No. 42 of 2015 was filed before
the Principal Bench of City Civil Court for transfer of the suit from
Court Room No. 31 to Court Room No. 10. He submits that the
transfer Application was not served upon the Applicant and there was
no notice. The suit was transferred from Court Room No. 31 to Court
Room No. 10 and thereafter the matter was kept for ex-parte
judgment about which no notice was given to the Applicant and the
impugned judgment came to be passed.
11. He submits that the Applicant acquired knowledge only when
the execution application was served upon the Applicant. He would
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further submit that there was no notice of 25 th July, 2016 received
from the Respondent and the signature was forged as he was
admitted in hospital from 26th August, 2023 to 29th August, 2016.
12. Per contra, Mr. Godbole, learned Senior Advocate for the
Respondent would submit that Applicant had the knowledge about
the proceeding in the year 2014 itself. He would submit that the suit
was initially filed before this Court and as the written statement was
not filed, the suit was transferred to the list of undefended suit which
was later on transferred to the City Civil Court. He submits that in
view of the suit being undefended suit, the City Civil Court passed the
order dated 10th December, 2012 for the suit to proceed ex-parte. He
submits that thereafter the matter was adjourned for time to time
and the Applicant did not participate in the proceeding. He would
submit that on 16th January, 2014, the Advocate for the Appellant
appeared and the matter was adjourned. He submits that draft Notice
of Motion being Notice of Motion No. 176 of 2014 was taken out for
setting aside the ex-parte order of 10th December, 2012. He submits
that after receiving the certified copy of the decree, the Respondent
No. 1 had addressed the notice dated 22 nd July, 2016 to the Applicant,
forwarding the copy of the judgment and decree dated 1 st July, 2015
and therefore, the Applicants were well aware of the passing of the
decree in the year 2016 itself. He would point out the registered post
acknowledgment acknowledging the receipt of the letter.
13. He would further submit that on 4 th December, 2013, the
Advocate for the Applicant had returned the papers of the suit to the
Applicant which records that the Applicant acknowledges that the
Advocates have done their work diligently and they do not had any
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grievance as regards the Advocate services. He would therefore
submit that grievance as regards non appearance of the Advocate
would not survive. To indicate that the Applicant was well aware of
the stage of proceedings, he points out the rojnama of 4 th April, 2014
and 5th May, 2014. He submits that the Applicants have been
negligent in pursuing the proceedings and therefore do not deserve
any indulgence. He submits that in the year 2013, the previous
Advocate had returned the papers and in 2016, the Respondent
themselves had informed the Applicant about the decree. He submits
that therefore the explanation tendered that the Applicant become
aware of the proceedings only in 2018 upon receiving notice of the
execution application is malafide application. He submits that in the
Notice of Motion taken out in the year 2014 for setting aside the ex-
parte order, allegation was made against the first Advocate that
despite having been briefed of the matter, the Advocate did not
attend the proceedings. He submits that the communication of 4 th
December 2013 would indicate that in fact the papers were returned
and therefore, the Notice of Motion No. 176 of 2014 put forth a false
case.
14. In rejoinder, Mr. Jain, learned counsel for the Applicant would
point out that the notice of year 2016 which is stated to be issued by
the Advocate for the Respondent was not received by the Applicant
as at that point of time he was in the hospital. He points out the
certificate issued by the hospital. He would further submit that the
rojnama of the City Civil Court does not reflect the correct record of
the proceeding as the rojnama of 26th April, 2013 shows the
appearance of one Kedar Shukla, whereas, he is not his Advocate. He
would further submit that the return of the papers by the earlier
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Advocate has not been suppressed by the Applicant and is stated in
paragraph No. 5 of the present Application. He would further
distinguish the decisions relied upon by Mr. Godbole and would
submit that the same are rendered in the different factual situation
and will not applicable in the present case.
15. Considered the submissions and perused the Record.
16. The delay is the present case is of 1084 days. Although it is well
settled that it is not necessary to explain each and every day's delay,
the explanation tendered must be sufficient enough to condone the
delay. From the contentions in the Application, the explanation
tendered by the Applicant is of ignorance of the passing of the
impugned judgment and decree. The Applicant lays the blame on his
Advocate who was appointed at the time of filing the Notice of
Motion No.176 of 2014 for setting aside the order dated 10 th
December, 2012 of ex-parte hearing of the suit, for not attending the
matter and not keeping the Applicant informed about the
proceedings. The Applicant explains his inability to keep track of the
matter due to his old age and medical ailments restricting his free
movement.
17. Pertinently, the Applicant does not state that he was unaware
of the proceedings pending in the City Civil Court and could not say so
for the reason that in the year 2014, the Applicant was aware of the
suit being proceeded ex-parte and had adopted appropriate steps for
setting aside the order of 10th December, 2012. In fact, an allegation
is made against the Advocate who were earlier representing the
Applicant that no proper response was given by the Advocate and
thereafter another Advocate came to be appointed in the
proceedings.
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18. Considering that the Applicant had in the year 2014 changed
the Advocate representing him in the City Civil Court for not pursuing
the proceedings, it was expected of the Applicant that having once
claimed to have suffered dis-service at the hands of his previous
Advocate, the Applicant would be diligent in keeping track of the
proceedings before the City Civil Court. The blame is again sought to
be placed on the subsequent Advocate for not attending the matter
and not keeping the Applicant informed.
19. In the year 2014, when the Notice of Motion was filed, the suit
was at the stage of ex-parte judgment, and ought to have put the
Applicant to notice that in event, the Notice of Motion is not allowed,
then the consequence would be passing of ex-parte judgment.
This is precisely what the rojnama of 30 th January, 2015 records while
dismissing the Notice of Motion No 176 of 2014. Having been made
aware at the precarious stage at which the proceedings were perched
which in event of the dismissal of the Notice of Motion, would have
resulted in passing of an ex-parte judgment, the Applicant ought to
have been more diligent. The rojnama shows that on 4 th March, 2014
and 5th May, 2014, the Applicant himself was present in the Court and
cannot therefore claim to be unaware of the stage of the
proceedings.
20. The rojnama of 30th January, 2015 records that the Advocate for
the Defendant was present. Notably, the Application does not plead
that the Applicant was not aware of the dismissal of the Notice of
Motion by order dated 30th January, 2015. The contention is that the
Applicant was not aware or informed about the impugned judgment
and decree dated 1st July, 2015. It is therefore clear that although
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being aware of the stage where the proceedings were positioned, the
Applicant was negligent in keeping track of the proceedings and
taking timely steps in case any adverse order is passed.
21. The Applicant is not a rustic villager or an illiterate person
unaware of the legal procedure. The Applicant is a retired member of
Legislative Assembly and cannot simply state that he was unaware of
the proceedings as his Advocate did not keep him informed. In the
present case, the Applicant seeks to blame his Advocates who had
appeared in the matter. The entire application is silent about the
efforts taken by the Applicant to contact his advocate to keep himself
abreast of the proceedings. As far as the first Advocate is concerned,
it is stated in the Application that in the month of December, 2014
when the original Applicant visited Mumbai and met his advocate, he
was not given a proper answer and the papers were returned. The
communication by the first Advocate which is at Page 130 of the
Applicant is dated 4th December, 2013. It is therefore evident that the
papers were returned by the Advocate in December, 2013 itself,
whereas in the Affidavit in Rejoinder filed in the Notice of Motion No.
176 of 2014, the Applicant pleads that in last week of December, 2013
the Applicant had met his earlier Advocate who had expressed
ignorance about the status of the suit and did not give satisfactory
response. Considering the communication of 4 th December, 2013 a
palpably incorrect statement was made in the Affidavit in Rejoinder by
the Applicant.
22. In so far as the age of the Applicant is concerned, the judgment
was delivered on 1st July, 2015 and the rojnama of 4th March, 2014 and
5th May, 2014 records the presence of the Applicant. Therefore the
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Applicant was capable of traveling in the year 2014 and nothing has
been shown that in the year 2014 the Applicant suffered any ailment
by virtue of which after May, 2014, his movements were restricted and
he was confined to bed. Even assuming, though there is no medical
records produced on record to show that the Applicant was confined
to his bed, considering the pending Court proceedings sufficient steps
should have been taken by the Applicant to safeguard his interest.
23. Mr. Godbole would submit that the notice of the ex-parte
judgment was communicated by a letter dated 27 th July, 2016 which
has been duly received by the Applicant on 27 th August, 2016. This is
sought to be countered by Mr. Jain by submitting that during the
period from 26th August, 2016 to 29th August 2016, the Applicant was
admitted to Lata Mangeshkar Hospital and the signature on the
acknowledgment is forged. It needs to be noted that it is not the
contention of the Applicant that the address at which the letter of
27th July, 2016 was sent by the Respondent was not the correct
address. In the absence of any such statement, the fact that the
communication was sent at the correct address of the Applicant
would indicate that the notice was received at the Applicant's address
even though it may be assumed for the sake of arguments was not
signed by the Applicant. As the notice was sent at the correct address,
there is presumption of service and ought to have come to the notice
of the Applicant after his discharge.
24. The Applicant seeks to condone the delay of 1084 days by
contending that the Applicant became aware about the impugned
judgment in March, 2018 when the summons was received from the
executing Court. However, the Applicant was well aware of the
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proceedings pending before the City Civil Court and even if the
Applicant was not aware of the passing of judgment the same is solely
due to negligence of the Applicant. Even if the immobility of the
Applicant is accepted, the same would not be deviate from the fact
that constant follow up could have been kept on telephone with the
Advocates or by appointment of a constituted attorney to keep track
of the proceedings in the City Civil Court. If the Applicant's
explanation is accepted that he was not kept informed by his
Advocate, then in every case the litigant would seek to justify the
delay by placing the blame on his Advocates. It is not that such a
reason cannot be accepted but it must be shown that despite the
litigant being in constant touch with his Advocate, the Advocate did
not keep him informed. There is no communication addressed by the
Applicant to his Advocate seeking an explanation for not attending
the matter and not apprising the Applicant of the development which
would have lend credence to the explanation that the Applicant was
not informed by his Advocate. Inability to keep track of the
development of the suit must be supported with such strong reasons
that it cannot be expected that the Applicant could have contacted
his advocate at all. There is no reason which is set out as to why there
could not be any contact established between the Applicant and his
Advocate to keep himself abreast of the proceeding before the Trial
Court. In Kanta vs Manjulabai And Ors. [2020(1) MhLj 918], this
Court has held in paragraph 4 and 7 as under:
"4. This submission, at the first blush, appears very
attractive and tends the Court to interfere with the matter.
However, after hearing the learned counsel for the
applicant, especially when a query was put to the learned
counsel in respect of the conduct on the part of the
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applicant as to whether at any point of time, she on her
own, contacted her advocate, the reply was in negative. A
litigant who approaches to the Court must be diligent. He or
she must take all steps to pursue his or her litigation. It is
expected from the litigant that he or she in contact with the
lawyer who is representing his or her cause in the Court of
law. A litigant cannot take a spacious plea that once the
case is entrusted with an the advocate his or her work is
over and the advocate will take care of the matter. An
advocate always discharges his duties on the instructions
given to him by his client.
7. It is very easy for a litigant to make allegations against
an advocate behind his back. If the applicant wishes to
make allegations against the advocate, the applicant should
have a courage to join the advocate as a party and in his
presence should make allegation against him. Her, the
applicant wants to condemn the advocate behind his back.
In my view, it is impermissible and unacceptable. Further, no
steps are also being taken by the applicant against any
advocate under the provision of the Advocates Act."
25. In Sheo Raj Singh (deceased) vs. Union of India And [dated
9th Oct, 2023 in Civil Appeal No. 5867 of 2015] , the Apex Court after
taking note of the various decisions on the subject has held in
paragraph No. 29 as under :
"29. Considering the aforementioned decisions, there cannot
be any quarrel that this Court has stepped in to ensure that
substantive rights of private parties and the State are not
defeated at the threshold simply due to technical
considerations of delay. However, these decisions
notwithstanding, we reiterate that condonation of delay
being a discretionary power available to courts, exercise of
discretion must necessarily depend upon the sufficiency of
the cause shown and the degree of acceptability of the
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explanation, the length of delay being immaterial.
Sometimes, due to want of sufficient cause being shown or
an acceptable explanation being proffered, delay of the
shortest range may not be condoned whereas, in certain
other cases, delay of long periods can be condoned if the
explanation is satisfactory and acceptable. Of course, the
courts must distinguish between an explanation' and an
'excuse'. An 'explanation' is designed to give someone all of
the facts and lay out the cause for something. It helps clarify
the circumstances of a particular event and allows the
person to point out that something that has happened is not
his fault if it is really not his fault, Care must however be
taken to distinguish an 'explanation' from an 'excuse'.
Although people tend to see 'explanation' and 'excuse' as
the same thing and struggle to find out the difference
between the two, there is a distinction which, though fine, is
real. An 'excuse' is often offered by a person to deny
responsibility and consequences when under attack. It is sort
of a defensive action. Calling something as just an 'excuse'
would imply that the explanation proffered is believed not
to be true. Thus said, there is no formula that caters to all
situations and, therefore, each case for condonation of
delay based on existence or absence of sufficient cause has
to be decided on its own facts. At this stage, we cannot but
lament that it is only excuses, and not explanations, that are
more often accepted for condonation of long delays to
safeguard public interest from those hidden forces whose
sole agenda is to ensure that a meritorious claim does not
reach the higher courts for adjudication."
26. In Pathapati Subba Reddy vs. The Special Deputy Collector
(LA) [2024 (3) ALT51], the Apex Court has summarised the law on the
aspect of condonation of delay in paragraph 26 as under :
"26. On a harmonious consideration of the provisions of the law,
as aforesaid, and the law laid down by this Court, it is evident
that:
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(i) Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting the
right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised
or availed of for a long time must come to an end or
cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be
construed in a strict sense whereas Section 5 has to
be construed liberally;
(iv) In order to advance substantial justice, though
liberal approach, justice- oriented approach or cause
of substantial justice may be kept in mind but the
same cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation
Act;
(v) Courts are empowered to exercise discretion to
condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary
in nature and may not be exercised even if sufficient
cause is established for various factors such as, where
there is inordinate delay, negligence and want of due
diligence;
(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also entitled
to the same benefit if the court is not satisfied with
the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be
considered in condoning the delay; and
(viii) Delay condonation application has to be decided
on the parameters laid down for condoning the delay
and condoning the delay for the reason that the
conditions have been imposed, tantamounts to
disregarding the statutory provision."
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27. In Mahadev Govind Gharge vs. Special Land Acquisition
Officer [(2011) 6 SCC 321], the issue for consideration before the
Apex Court was interpretation of Order 41 Rule 22 of CPC in the
context of limitation provided for filing of cross objection within one
month as provided in Rule 22 of CPC. The facts of that case are
distinguishable and thus inapplicable to the present case.
28. In Kamlashankar Lutawan Rajbhar vs. Makhodar Dipan
Rajbhar [2015 SCC OnLine Bom 4389], learned Single Judge of this
Court exercised the discretion in favour of the Applicant and
condoned the delay of 495 days. It cannot be gainsaid that the
discretion whether to condone the delay or not would depend on the
facts and circumstances of each case.
29. In Collector, Land Acquisition Anantnag And Anr. vs. Katiji And
Ors. [(1987) 2 SCC 107], the Apex Court found that sufficient cause
existed for condoning the delay of four days caused by the State in
filing the Appeal.
30. There is no quarrel with the enunciation of law laid down in the
above decisions, the issue is about the applicability which depends on
facts and circumstances of each case. It is well settled that liberal
approach is required to be adopted by the Courts while applying
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Section 5 of Limitation Act. At the same time it is also settled that the
delay is not to be condoned as a matter of course and sufficient cause
has to be shown for condoning the delay. In the present case, after
the decree has been passed in July, 2015, the execution proceedings
were adopted in the year 2018 and thereafter the present Application
has been filed seeking condonation of delay. In Esha Bhattacharjee
vs . Committee of Raghunathpur Nafar Academy [(2013) 12 SCC
649], the Apex Court has held that the conduct, behavior and attitude
of the party relating to its inaction or negligence are relevant factors
to be taken into consideration. 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.
31. The law of limitation is founded on public policy with the intent
to give a quietus to the litigation. It is not the duration of the delay
but the explanation tendered which deserves consideration. The
principle of liberal approach in matters of condonation of delay
cannot be stretched to such an extent that where the litigant is
evidently negligent and is guilty of inaction, on the bedrock of
substantial justice, the delay should be condoned. If the facts of the
present case are considered, it is evident that the Applicant seeks to
lay the blame squarely on the shoulders of his Advocate for not
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informing the Applicant about the dismissal of the Notice of Motion
and consequently being unaware of the ex-parte judgment being
passed on 1st July, 2014. In my opinion, it is the Applicant who is guilty
of gross negligence and inactive attitude and therefore the
application lacks bonafides.
32. There is also not a single pleading in the entire application as to
the efforts taken by the Applicant to keep in touch with his Advocate
engaged during the hearing of the Notice of Motion No. 176 of 2014.
The reason assigned for the same is old age and the age related
ailments about which there is no medical records. If a litigant wishes
the Court to adopt a liberal approach while adjudicating the
Application under Section 5 of the Limitation Act, it is necessary to
show that there was no negligence on part of the litigant and that
sufficient explanation has been given for the delay. Law comes to the
aid of a litigant who has been diligent in pursuing his remedies.
Further, although the applicant has sought to blame his Advocate,
admittedly, no steps have been taken against the Advocate concerned
and there is not even a single communication addressed by the
Applicant to his Advocate pointing out the said facts upon receipt of
the Execution Application.
33. It cannot be presumed that no prejudice will be caused to the
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Respondent and the imposition of costs will justify the delay. The
Respondent has succeeded in the Trial Court in the year 2015 and had
put the decree in execution. Considering the factual position and
Applicant has lost the right to have the matter considered on merits
by reason of his own negligence and and inaction.
34. In my view, it is not a fit case to exercise the discretion in favour
of the Applicant and to condone the delay of 1084 days. Resultantly,
the Application stands dismissed.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 21/08/2024 19:44:29
