The Bombay High Court recently comprising of a bench of Justice N.J. Jamadar observed that liberal consideration in applications for condonation of delay does not include insufficient cause, negligence and unreasonable delay. (Govind v/s Laxmibai And Ors.)
The bench observed that judicial discretion cannot be so liberally exercised as to condone the delay where no cause is made out or the cause ascribed is unworthy of acceptance since paramount consideration while determining an application for condonation of delay remains the advancement of the cause of substantive justice and not allowing the procedure to merely score a march over substantive justice, yet, the sufficiency of cause and explanation for delay warrant consideration.
Facts of the case
The background facts leading to this petition are, the father of the petitioner, Late Gangadhar Jagalpure, had instituted a suit against respondents seeking a declaration that the registered sale deed executed in favour of respondent No.1 was void and not binding. It was averred that respondents had fraudulently got the sale deed executed by him by taking undue advantage of his physical condition and the trust and confidence which he had reposed in them. It is to be noted that Gangadhar died in 2002 leaving behind the petitioner, co-applicant Panurang, and respondents No. 5 to 7 as his legal representatives. Since the applicant was unaware about the suit land being in possession of Respondent, he filed a Civil Application for setting aside the order of abatement which was resisted by them since they contended that the application cannot be entertained as there was no prayer for condonation of delay. Hence, the aggrieved applicant invoked the writ jurisdiction of this Court.
The present petition was filed challenging the judgment passed by learned District Judge, Udgir, in whereby he dismissed the appeal and upheld the common order of Civil Judge to dismiss the application for condonation of delay.
Contention of the Parties
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Mr. Suryawanshi, the learned Counsel for the petitioner, strenuously urged that the learned District Judge as well as the learned Civil Judge have adopted a very pedantic approach. In the process, the trial Court as well as the Appellate Court lost sight of the time tested principle that an application for condonation of delay, especially in taking out the application for setting aside abatement, ought to receive liberal consideration and discretion has to be exercised so as to advance the cause of substantive justice. As the applicants had assigned justifiable reason, of being unaware of the institution of the suit by their late father, the Courts below, according to Mr. Suryawansbhi, committed manifest error in declining to exercise the discretion to condone delay and set aside the abatement and thereby deprived the petitioner-applicant of the valuable rights in the suit property. Therefore, it is necessary to exercise extra-ordinary jurisdiction to correct the errors into which the Courts below have fallen, urged Mr. Suryawanshi.
Mr. Joshi, the learned Counsel for respondents No.1 to 4 stoutly submitted that the applicants were guilty of suppression of facts. The material on record indicates that the claim of the applicants that they were unaware of the institution of the suit by their late father was demonstrably false. The assertion of the applicants that they became aware of the institution and disposal of the suit by late Gangadhar only when respondent No.1 allegedly obstructed applicant No.1 Govind from entering into the suit land is belied by the pleadings and proceedings in Reg. Civil Suit No. 163 of 1997 instituted by co-applicant Pandurang and to which the applicant-petitioner Govind was a party-defendant. The suit land i.e. survey No. 21/1, was the subject matter of the said suit as well and respondent No.1 herein was impleaded as a party- defendant to the said suit in her capacity of transferee of the suit land from late Gangadhar, under the sale deed dated 8th July 1999 and the plaint came to be amended to seek a declaration that the said sale deed was not binding on the share of plaintiff Pandurang. Thus, the trial Court and the Appellate Court were wholly justified in dismissing the application for condonation of delay and for setting aside the abatement, submitted Mr. Joshi.
Courts observation & Judgment
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The bench noted that late Gangadhar died on 11th May 2002 but the application for setting aside the abatement was preferred in 2008 whereas the application for condonation of delay in taking out the said application for setting aside the abatement was preferred in 2014.
The Court in this regard observed that late Gangadhar and his legal representatives were estranged and, thus, the applicants were not aware of the institution of the said suit thus the “The legal position is fairly crystallized to the effect that the expression ‘sufficient cause’ within the meaning of section 5 of the Limitation Act 1963 or under Order XXII of the Code or any other like provision ought to receive a liberal consideration so as to advance the cause of substantial justice. Where no negligence or inaction or want of bonafide can be imputed to a party, normally the discretion ought to be exercised in favour of the party seeking condonation of delay. At the same time, Court should be alive to the fact that by allowing the proceeding to abate, a valuable right has accrued to the other party which ought not to be defeated by condoning the delay in a routine fashion.”
On the basis of the facts and circumstances of the case, the court asserted that “the claim of the applicants that they were unaware of the institution of the suit itself pales insignificance. Since Pandurang had instituted the suit for partition against late Gangadhar, but the petitioner also had instituted a suit for partition, which was eventually dismissed. In the circumstances, the Courts below cannot be said to have committed an error in arriving at a finding that the cause sought to be ascribed by the applicants was not sufficient.”.
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The court relied on Supreme Court cases; Balwant Singh (dead) Vs. Jagdish Singh and others, 2010(8) SCC 685 and cautioned against construing the provisions of the Order XXII of the Code and Section 5 of the Limitation Act in such a manner as to render them redundant and inoperative.
Hence, it was stated that “paramount consideration while determining an application for condonation of delay is necessary for the advancement of substantive justice yet, the sufficiency of cause and explanation for delay warrant consideration.”
Since the cause for delay was not reasonable thus, the petition was dismissed.
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