Bombay High Court
Lakhamshi Narshi Delted Since Decd. ... vs Prafulla Devendrapal Singh Chauhan And ... on 19 September, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:39262
55 WP 3668-25.doc
Ashish
Digitally signed
ASHISH by ASHISH
SAHEBRAO
SAHEBRAO MHASKE
MHASKE Date: 2025.09.19
18:34:45 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3668 OF 2025
Lakhamshi Narshi deleted since Deced.
Thr Usha Mangesh Mehta ... Petitioner
V/s.
Prafulla Devendrapal Singh Chauhan
and ors ... Respondents
Mr. Jaydeep Deo a/w Onkar Gawade, for the Petitioner.
Mr. Shravan Vyas for respondent nos.1 to 5.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 19, 2025
P.C.:
1. This Petition is filed under Article 227 of the Constitution of
India. The petitioner is challenging the legality and validity of the
judgment and order dated 4 February 2025 passed by the Small
Causes Court in MARJI Application No. 291 of 2023 in RAE Suit
No.1202 of 2014. By the said order, the petitioner's application for
condonation of delay, which according to the Court was of 166
days but according to the petitioner was of 31 days, came to be
rejected.
2. The petitioner claims to be the legal representative of the
original defendant, who was party to the suit. The Trial Court
passed a decree for possession on 3 May 2023. The case of the
petitioner is that she was not informed by her Advocate about the
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progress of the matter or about the passing of the decree. She
claims that only when the bailiff visited the suit premises on 6
October 2023 for execution, she came to know about the decree.
Thereafter, she filed an application on 20 November 2023 for
setting aside the ex parte decree. In that application, the delay was
stated as 166 days. It was also mentioned that the petitioner, who
is the original defendant No.1, suffers from polio and is unable to
walk.
3. The said application was opposed by the landlord by filing
reply. It was contended that the petitioner-defendant No.1(c) was
never in possession of the suit premises. She never carried on any
business with the tenant during his lifetime and therefore was not
entitled to inherit tenancy rights.
4. It was further submitted by the landlord that the record
shows inconsistency in the petitioner's case. Though the
application states that the certified copy of the decree was applied
for on 20 November 2023, the verification of the delay
condonation application bears the date 10 November 2023. In fact,
the certified copy was applied for on 3 November 2023 and
delivered on 9 November 2023. This contradiction, according to
the landlord, shows that the grounds taken in the application are
not correct.
5. The Trial Court, after considering rival submissions, refused
to condone the delay. It relied on several judgments of the
Supreme Court and this Court which lay down that unless
sufficient cause is shown, delay cannot be condoned. The Trial
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Court observed that except a vague statement that the petitioner
came to know of the decree only when the bailiff came for
execution, no convincing explanation has been given. Such
explanation cannot be treated as sufficient cause. On this
reasoning, the Trial Court rejected the application.
6. On perusal of the application for condonation of delay, it is
clear that in paragraph 5 the petitioner-defendant No.1(C) has
specifically stated that she is unable to walk as she suffers from
polio. This fact was not disputed before the Trial Court. In such
circumstances, it was expected of the Trial Court to examine the
plea of delay with due regard to the petitioner's physical disability.
Courts are expected to adopt a sympathetic approach while
dealing with applications where genuine hardships are shown,
particularly when disability restricts the applicant's capacity to
effectively defend her case.
7. It further appears from the record that the petitioner did not
contest the suit proceedings. Her explanation that she became
aware of the decree only when the bailiff visited the premises for
execution cannot be brushed aside lightly. This explanation stands
supported by the sequence of events placed on record. Moreover, it
is also an undisputed fact that in execution of the decree,
possession of the suit premises has already been taken by the
landlord. Therefore, as of today, the petitioner is not in possession
of the suit property. This fact lends support to her stand that she
had no knowledge of the proceedings earlier.
8. Learned Advocate for the petitioner has relied on the
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judgment of the Supreme Court in Balwant Singh vs. Jagdish
Singh and Others, (2010) 8 SCC 685 , and the judgment of this
Court in Vaishnavi Engineers and Developers Pvt. Ltd. vs. Navnath
Ramkrishna Mhatre and Others (Writ Petition No.5611 of 2025).
9. In both these judgments, it has been held that the expression
"sufficient cause" under Section 5 of the Limitation Act has to be
interpreted liberally, to advance the cause of justice. At the same
time, the Courts have also cautioned that a liberal approach cannot
be extended to cases where the explanation is fanciful or mala
fide. The conduct of the party must always be a guiding factor.
10. In the present case, the petitioner has demonstrated a
genuine cause for the delay. She has placed on record her physical
disability arising out of polio, which restricts her movements and
makes it difficult for her to attend court proceedings regularly. This
fact is mentioned in her application and has not been seriously
disputed by the landlord. The petitioner has further explained that
she came to know of the decree only when the bailiff visited the
premises for execution. This explanation is consistent with the
factual position that she was not participating in the trial and had
no prior intimation about the progress of the case.
11. There is no material on record to suggest that the petitioner
deliberately avoided the proceedings or that she acted with mala
fides. The record also does not disclose any attempt on her part to
gain undue advantage by delaying the filing of the application. On
the contrary, once she became aware of the decree, she applied for
a certified copy and filed the necessary application within a
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reasonable time.
12. The law under Section 5 of the Limitation Act requires the
Court to adopt a liberal approach where sufficient cause is shown,
so that substantive rights are not defeated merely on technical
grounds of limitation. The Supreme Court and this Court have
repeatedly held that where there is no deliberate negligence or
mala fide conduct, the Court should lean towards condonation of
delay, as denial of such relief may result in grave injustice.
13. The Trial Court, however, rejected the application by terming
the explanation as vague. In doing so, it failed to appreciate the
petitioner's physical condition and the circumstances in which she
came to know of the decree. Justice requires that a litigant should
not be deprived of an opportunity to contest her case merely
because she suffers from a disability or because she was unaware
of the proceedings until the stage of execution.
14. In my view, therefore, the explanation offered by the
petitioner satisfies the test of sufficient cause under Section 5 of
the Limitation Act. The Trial Court erred in adopting a rigid
approach and in failing to consider the matter in the light of
fairness, equity, and advancement of justice.
ORDER
i. The impugned judgment and order dated 4 February 2025
passed by the Small Causes Court, Mumbai in MARJI
Application No. 291 of 2023 in RAE Suit No.1202 of 2014 is
quashed and set aside.
55 WP 3668-25.doc
ii. MARJI Application No. 291 of 2023 filed by the petitioner
for condonation of delay stands allowed. The delay is hereby
condoned.
iii. The application filed by the petitioner under Order IX
Rule 13 of the Code of Civil Procedure for setting aside the
ex parte decree shall be heard and decided by the Trial Court
on its own merits and in accordance with law.
iv. The Trial Court shall afford reasonable opportunity to
both parties to place their case before passing final orders.
v. All contentions of both sides on merits are kept open.
(AMIT BORKAR, J.)
