Bombay High Court
Mahendra Jayantilal Shanklesha vs Kum Anita Hiralal Thakkar on 19 June, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:24442
Varsha wp-3533-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3533 OF 2024
1. Mahendra Jayantilal Shanklesha }
Age: 41 years Occ: Business }
Residing at: c/o Jayantilal Sohanraj }
Shanklesha First Floor, in front of }
Bank of Baroda, Near Raja Hotel, } .....(Petitioner)
Ahilyadevi Chowk } / Ori. Applicant
Versus
Kum Anita Hiralal Thakkar }
Age: 19 years Adult Occ: Business }
Residing at: Laxmi Building, }
Narayan Wadi, Old Station Road, }
Kalyan (W), District-Thane } ....Respondent
} (Orig Respondent)
-------------------
Mr R.S. Datar a/w Druti Datar, for the Petitioner.
Ms. Pooja Beeramgudam, for the Respondent
---------------------
CORAM : N.J. JAMADAR, J.
DATED : 19TH JUNE 2025
SANTOSH
SUBHASH
JUDGMENT:
KULKARNI
1. Rule. Rule made returnable forthwith and, with the consent
of learned counsel for the parties, heard finally.
2. This petition under article 227 of the Constitution of India
assails an order dated 21st November 2023, passed by the learned
District Judge, Kalyan in CMA No. 2 of 2023, whereby an application
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preferred by petitioner/plaintiff for condonation of delay in filing the
appeal against the judgment and decree dated 27 th October 2021,
passed in Regular Civil Suit No. 138 of 2013, by the learned Civil
Judge, Kalyan, came to be dismissed.
3. The petitioner claimed to be a tenant of the suit premises,
owned by the respondent. The petitioner instituted a suit for
declaration that the petitioner is the tenant in the suit premises and to
restrain the defendant from causing obstruction to repairs then being
carried out by the petitioner, to the suit premises.
4. Upon contest, the suit came to be dismissed by the learned
Civil Judge by a Judgment and Decree dated 27th October 2021.
5. The petitioner filed an appeal thereagainst along with an
application for condonation of delay, on 4th October 2022. It was, inter
alia, asserted in the application for condonation of delay that the
impugned judgment came to be delivered during the course of Covid-
19 Pandemic. On account of the situation then prevalent, the petitioner
could not contact his advocate. The certified copies of the judgment
and decree were obtained on 25 th August 2022. The petitioner had
been to his native place at Rajasthan.
6. Therefore, there was 383 days delay in filing the appeal. The
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petitioner sought to take benefit of the order passed by the Supreme
Court in Suo Moto Writ Petition (C) No. 3 of 2020 dated 10 th January
2022, suspending the period of limitation from 15 th March 2020 till the
28th February 2022. Excluding the said period, the petitioner claimed
that there was delay of about 185 days.
7. The application was resisted by the respondent / defendant.
8. By the impugned order, the learned District Judge was persuaded
to dismiss the application observing, inter alia, that the record
indicated that the learned Advocate for the petitioner was aware of the
passing of the decree on 27th October 2021 and, despite knowledge,
the petitioner did not take diligent steps to file the appeal. In the
opinion of learned District Judge, the delay was attributable to
negligence and indifference on the part of the petitioner.
9. Being aggrieved, the petitioner has invoked the writ
jurisdiction.
10. An affidavit-in-reply has been filed, on behalf of
Respondent. Controverting the contentions in the petition it was, inter
alia, contended that the petitioner was very much aware of the passing
of the judgment and decree on 27 th October 2021 as the
pronouncement of judgment was noted by the advocate for the
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petitioner on the very day. Banking upon the case details maintained
by the District Court at Kalyan, an endeavour was made to
demonstrate that the application for condonation of delay was, in fact,
filed on 6th January 2023. Thus, the delay was both inordinate and
unexplained.
11. Mr. Datar, the learned counsel for the petitioner, would
urge that the learned District Judge took a hyper-technical view of the
matter. The learned District Judge was not expected to adopt a
pedantic approach. The impugned order, thus, suffers from the vice of
disregard to the settled principles of law in the matter of condonation
of delay.
12. Mr. Datar would urge that, in view of the order passed by
the Supreme Court in Suo Moto Writ Petition (C) No. 3 of 2020, the
appeal could have been filed within a period of 90 days from 1 st March
2022. The said period expired on 30 th May 2022. If viewed in this
context the delay in filing the application; which was filed on 4 th
October 2022, cannot be said to inordinate by any standard. At any
rate, the petitioner has ascribed justifiable reasons.
13. In opposition to this Ms. Pooja Beeramgudam made a
strenous effort to persuade the Court to hold that the application for
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condonation of delay was filed on 6 th January 2023 as is evident from
the case details. Secondly, once the fact of the pronouncement of the
judgment on 27th October 2021 was noted by the learned advocate for
the petitioner, before the Trial Court, on the very day, the petitioner
cannot be heard to urge that, he was unaware of delivery of the
judgment.
14. I have carefully perused the material on record. It is trite an
application for condonation of delay should receive liberal
consideration. The Courts, more often than not, lean in favour of the
condonation of delay so as to advance the cause of the substantive
justice. The majesty of the Court lies in deciding the matter on merits
rather than on technicalities. A very rigid approach in the matter of
condonation of delay, leads to a situation of the procedure, which is
handmaid of justice, scoring a march over the substantive justice. The
Courts are also required to be conscious of the fact that, ordinarily, a
litigant does not gain any advantage by approaching the Court
belatedly. Therefore, the term 'sufficient cause' is construed rather
liberally.
15. A profitable reference, in this context, can be made to the
decision of the Supreme Court in the case of N. Balakrishnan V/s. M.
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Krishnamurthy1 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 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.
1 AIR 1998 Supreme Court 3222,
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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
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)
16. On the aforesaid touchstone, reverting to the facts of the
case, it is necessary to note that the claim of the petitioner that the
application for condonation of delay was filed on 4th October 2022 is
substantiated by the endorsement made on the application by the
Court official, at the time of institution. Secondly, the learned District
Judge did not properly appreciate the import of the order of the
Supreme Court in Suo Moto Writ Petition (C) No. 3 of 2020, whereby
the Supreme Court directed that the period from 15 th March 2020 till
28th February 2020 shall stand excluded for the purpose of limitation
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as may be prescribed under any general or special laws in respect of
judicial or quasi judicial proceedings.
17. Indubitably, the impugned judgment and decree was passed by
the Trial Court during said window period. Consequently, in all cases
where the limitation had expired during the period between 15 th March
2020 till 28th February 2022, by the aforesaid order the Supreme Court
provided a further period of limitation of 90 days. The said period of
90 days expired on 30th May 2022. The learned District Judge was thus
not justified in dismissing the application for condonation of delay by
adverting to the acts or omissions on the part of the petitioner during
the said window period.
18. Even otherwise, the Court cannot lose sight of the fact that
the exigency of the situation which arose on account of Covid-19
pandemic was alarming and unprecedented. In the said context, the
learned District Judge ought to have adopted a more liberal approach.
It is true, there is a further delay post 31 st May 2022. However, the said
delay is not inordinate. A sufficient cause was ascribed for the same, as
well. At any rate, the inconvenience and delay caused to the
respondent could have been compensated by awarding costs. I am,
therefore, inclined to allow the petition.
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19. Hence the following order:
:O R D E R :
i) The Petition stands allowed.
ii) The impugned order stands quashed and set
aside.
iii) The application for condonation of delay stands
allowed.
(iv) The delay in preferring the appeal stands
condoned subject to the Petitioner-Appellant paying
costs of Rs. 25,000/- to the respondent-defendant
within a period of four weeks from today.
v) The payment of costs shall be a condition
precedent for registering the appeal.
20. Rule is made absolute in the aforesaid terms.
(N.J. JAMADAR, J)
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