Bombay High Court

Late Maruti Sakharam Shinde Thr His ... vs Late Dyandeo Kondiba Bhosale Thr His ... on 17 February, 2025

Author: N. J. Jamadar

Bench: N. J. Jamadar

2025:BHC-AS:8076
                                                                          41-WP13105-2023.DOC

                                                                                            Santosh

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CIVIL APPELLATE JURISDICTION


                                           WRIT PETITION NO. 13105 OF 2023

                       Late Maruti Sakharam Shinde through
                       LRs.                                                  ...Petitioners
                                        Versus
                       Late Dyandeo Kondiba Bhosale and anr.              ...Respondents

SANTOSH
SUBHASH                Mr. Nitesh Bhutekar, a/w Prathamesh Mandlik, for the
KULKARNI                    Petitioners.
 Digitally signed by
 SANTOSH
 SUBHASH
                       Mr. C. G. Gavanekar, a/w Ashutosh Gavanekar and Rohit
 KULKARNI
 Date: 2025.02.20
 10:16:16 +0530             Parab, for the Respondents.

                                                       CORAM: N. J. JAMADAR, J.
                                                       DATED: 17th FEBRUARY, 2025

                       JUDGMENT:

1. Rule. Rule made returnable forthwith and with the

consent of the learned Counsel for the parties heard finally.

2. The challenge in this petition is to an order dated 4 th

August, 2023 passed by the learned District Judge, Panvel,

whereby an application preferred by the petitioner - appellant in

Civil Appeal No.178 of 2019 to bring the legal representatives of

respondent No.1, who passed away on 9 th February, 2021 came

to be rejected.

3. Dyandeo Bhosle, the deceased respondent No.1 had filed

Special Civil Suit No.125 of 2009 for recovery of possession of

the suit house. By a judgment and decree dated 30 th June,

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2018, the said suit was partly decreed and the petitioners -

defendant Nos.1 and 2 were directed to deliver possession of the

suit house to the plaintiff within two months thereof.

4. The predecessor-in-title of the petitioners carried the

matter in appeal before the learned District Judge. During the

pendency of the said appeal, respondent No.1 passed away on

9th February, 2021. Thus an application for setting aside the

abatement and bringing the legal representatives on record

came to be filed. It was, inter alia, contended that the

appellants were unaware of the death of respondent No.1, the

Advocate for the appellants was unwell and eventually passed

away and in view of Covid-19 Pandemic the application could

not be filed within the stipulated period of limitation.

5. By the impugned order, the learned District Judge was

persuaded to reject the application primarily relying upon the

decision of the Supreme Court in the case of Isha Bhattacharjee

vs. Managing Committee of Raghunathpur Nafar Acadamy and

others1.

6. The learned Counsel for the petitioner submitted that the

petitioners had ascribed justifiable reasons. It is a matter of fact

that the Advocate, who then represented the appellant, was ill

1 (2013) 12 SCC 649.

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and eventually passed away. Covid-19 Pandemic intervened. In

these circumstances, the learned District Judge could have

better exercised the discretion to condone the delay.

7. The learned Counsel for the respondent supported the

impugned order.

8. It is trite an application for bringing the legal

representatives of a party deserves to be construed liberally. In

the absence of mala fide or deliberate inaction, the Court

ordinarily leans in favour of the condonation of delay so as to

advance the cause of substantive justice.

9. I have perused the averments in the application for

condonation of delay. The petitioners had ascribed justifiable

reasons for the condonation of delay. The learned District

Judge, therefore, ought to have taken a liberal view of the matter

and condoned the delay.

10. A useful reference, in this context, can be made to the

decision of the Supreme Court in the case of N. Balakrishnan

V/s. M. Krishnamurthy wherein the law was enunciated as

under:

"9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the

41-WP13105-2023.DOC

shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The reason for such a different stance is thus:

The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause"

under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V/s. Kuntal Kumari (AIR 1969 SC 575) and State of W.B. V/s. Administrator, Howrah Municipality ((1972) 1 SC 366).

13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door

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against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

(emphasis supplied)

11. In view of the aforesaid enunciation of law and to advance

the cause of substantive justice, the petition deserves to be

allowed.

12. Petition stands allowed.

13. Impugned order stands quashed and set aside.

14. Delay in seeking setting aside the abatement and bringing

the legal representatives of the deceased respondent No.1 stands

condoned.

15. The petitioners - appellants are permitted to bring the

legal representatives of deceased respondent No.1 on record.

16. Necessary amendment be carried out within two weeks of