Bombay High Court
Nandurbar Municipal Council vs Mangilal Mishrilal Bafana on 12 January, 2012
Author: S.S. Shinde
Bench: S.S. Shinde
1 ca14019.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.14019 OF 2010
WITH
CIVIL APPLICATION NO.14020 OF 2010
IN
SECOND APPEAL NO. 582 OF 2007
Nandurbar Municipal Council,
Through its Chief Officer,
Nandurbar, Dist. Nandurbar. ...APPLICANT
VERSUS
Mangilal Mishrilal Bafana,
since died through his legal heirs.
1A. Shri. Chagan Mangilal Bafana,
Age: 50 years, Occ: Business,
R/o. Station Road, Nandurbar,
District Nandurbar
1B. Shri. Ramesh Mangilal Bafana,
Age: 43 years, Occ: Occ: Business,
R/o. Girdhar Nagar, 76,
Navdip Society,
Opp. Chandramani Hospital,
Sai Bagh, Ahmedabad.
1C. Shri. Rajendra Mangilal Bafana,
Age: 46 years, Occ: Business,
R/o. A/30, Balkrushna Darshan
Co-operative Society, Ramnagar,
Near Bungalow of Dr. Rao,
Chiplun Road, Dombiwali,
Mumbai (East).
1D. Manjuben Madan Bafana,
Age: 43 years,Occ: Household,
R/o. Station Road, Nandurbar,
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District Nandurbar.
1E. Manali Madan Bafana,
Age: 20 years, Occ: Education,
R/o. Station Road, Nandurbar,
District Nandurbar.
1F. Mayanka Madan Bafana,
Age: 18 years, Occ: Education,
R/o. Station Road, Nandurbar,
District Nandurbar.
1G. Shantiklal Mangilal Bafana,
Age: Major, Occ: Household,
R/o. Station Road, Nandurbar,
District Nandurbar. ...RESPONDENTS
...
Mr. D.S. Bagul, Advocate for applicant.
Mr. R.R. Mantri, Advocate for respondent Nos.1A to
1G.
...
CORAM: S.S. SHINDE, J.
DATE : 12TH JANUARY, 2012
ORAL JUDGMENT :
. Rule. Rule made returnable forthwith.
Heard finally with the consent of the parties.
2. This Civil Application is filed for setting aside the order of abatement and for condonation of delay. The Counsel appearing for the applicant submits that, the Advocate appearing ::: Downloaded on - 09/06/2013 18:04:44 ::: 3 ca14019.10 in the second appeal informed about the death of the respondent to this Court on 21-07-2009. It is further submitted that, till 04-09-2009 when the impugned order came to be passed, the applicant could not take steps to file appropriate proceedings for bringing legal heirs of deceased respondent sole on record due to not having correct information about the legal heirs of the respondent. Learned Counsel further submits that, on 03-05-2010 the applicant filed application with the Tahsildar and requested him to furnish/supply the names of the legal heirs of the respondent sole. However, by communication dated 07-07-2010 the Tahsildar informed the applicant that, no such information is available with him. Thereafter, after obtaining the necessary information in respect of legal heirs of the deceased respondent (sole) from the record of the Executing Court on 16-07-2010, immediately this Civil Application is filed for setting aside the order of abatement and condonation of delay.
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3. Learned Counsel for the applicant invited my attention to the contents of the application and submitted that, even the applicant was not informed by the Advocate who is appearing before the Executing Court about the fact that, the legal heirs of respondent sole are brought on record in the execution proceedings in the month of August 2009. It is further submitted that, learned Counsel who appeared before this Court on earlier date of hearing i.e. 04-09-2009, did not inform the applicant about the order of abatement passed by this Court. Therefore, according to the Counsel for the applicant, delay in filing the application for recalling/setting aside abatement order dated 04-09-2009 passed by this Court deserves to be condoned. He further submits that, the applicant is ready to deposit costs, if so imposed while allowing application by this Court.
4. Pursuant to the notice issued in this Civil Application, the respondents have filed reply. Learned Counsel for the respondents ::: Downloaded on - 09/06/2013 18:04:45 ::: 5 ca14019.10 relying upon the contents of the affidavit in reply filed in this Civil Application, submits that, on 21-07-2009 statement of death of Mangilal was made before this Court and in spite of it, no steps were taken willfully by the applicant for recalling the order of abatement dated 04-09-2009.
It is further submitted that, there is no reason to approach the Tahsildar to get information about the legal heirs of the respondent sole since the legal heirs were already brought on record in the execution proceeding on 17-08-2009. It is further submitted that, the applicant approached the Tahsildar on 03-05-2010 i.e. after eight months of the order of abatement passed by this Court. It is further submitted that, both the Courts below have held in favour of the respondent on merits.
Therefore, it is submitted that, the delay in filing the application for recalling/setting aside the abatement order may not be condoned.
5. Relying upon the judgment of the Hon'ble Supreme Court in the case of Lanka Venkateshwarlu ::: Downloaded on - 09/06/2013 18:04:45 ::: 6 ca14019.10 (D) by L.Rs. vs. State of A.P. and others reported in A.I.R. 2011 S.C. 1199, it is further submitted that,the concepts such "liberal approach","justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. Therefore, learned Counsel for the respondents submits that, this application may be rejected.
6. I have given due consideration to the rival submissions. Upon careful perusal of the application for condonation of delay, there is no explanation at all for the period 04-09-2009 to 03-05-2010. The application is totally silent about the steps taken by the applicant from the date of passing of the abatement order i.e. 04-09-2009 till the applicant approached to the Tahsildar on 03-05-2010 for getting information about the legal heirs of deceased respondent sole.
It is true that, the length of delay itself is not ::: Downloaded on - 09/06/2013 18:04:45 ::: 7 ca14019.10 a sole factor while considering the prayer for condonation of delay. However, in the present case, from careful perusal of the application for condonation of delay, explanation for the period 04-09-2009 till 03-05-2010 is consciously missing.
I find considerable force in the arguments of the learned Counsel for the respondents that, when legal heirs of deceased respondent sole are brought on record before the Executing Court in a pending Darkhast on 17-08-2009, there was no necessity to approach the Tahsildar to know the names of the legal heirs of the deceased respondent sole. Even if the contention of the applicant is accepted that, the Pleader appearing for the respondent has informed this Court on 21-07-2009 about the death of respondent sole, in that case also the steps are not taken by the applicant to bring the legal heirs of deceased respondent sole on record. On 04-09-2009 this Court was constrained to observed in its order that, in spite of giving repeated chances to the applicant, no steps have been taken to bring the ::: Downloaded on - 09/06/2013 18:04:45 ::: 8 ca14019.10 legal heirs of deceased respondent sole on record.
7. Though the learned Counsel appearing for the applicant strenuously contended that, the Advocate appearing for the applicant before the Executing Court and also before this Court, have not informed the applicant about bringing legal heirs of deceased respondent sole on record before the Executing Court or about abatement order passed by this Court, from careful perusal of the contents of the application, there are no any averments to that effect, by the applicant in the application. Therefore, such a feeble attempt by the applicant to blame the Advocate is devoid of any merits in absence of any pleadings to that effect in the application and such submission of the Counsel for the applicant is required to be rejected at the outset.
. The Supreme Court in the case of Lanka Venkateswarlu (D) by L.Rs. vs. State of A.P. and others (supra) in para-26 held ;
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"26. We are at a loss
to fathom any logic or
rationale,which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation.
Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly ::: Downloaded on - 09/06/2013 18:04:45 ::: 10 ca14019.10 strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases.
Whilst considering applications
for condonation of delay under
Section 5 of the Limitation Act,
the Courts do not enjoy unlimited and unbridled discretionary powers.
All discretionary powers,
especially judicial powers,
have to be exercised within
reasonable bounds, known to
the law. The discretion has
to be exercised in a systematic
manner informed by reason.
Whims or fancies; prejudices
or predilections can not and
should not form the basis
of exercising discretionary
powers."
8. Therefore, taking overall view of the matter, there is no explanation for the period 04-09-2009 till 03-05-2010 in the application for condonation of delay. There is no justification for said period. In the facts and circumstances of ::: Downloaded on - 09/06/2013 18:04:45 ::: 11 ca14019.10 this case, it was absolutely unwarranted for the applicant to approach the Tahsildar to know the names of the legal heirs of the deceased respondent sole, since the names of those legal heirs were brought on record before the Executing Court in pending Darkhast. Therefore, it is difficult to accept that the delay occurred in filing the application is unintentional. It is true that, in appropriate cases if the explanation is found to be satisfactory, the respondents can be compensated by payment of the costs and delay can be condoned. But, in the facts and circumstances of this case and when it appears to this Court that applicant has not approached this Court with clean hands, and in the light of discussion herein above and when the applicant himself is a public servant and bound to act diligently, has not taken steps within time, Civil Application for delay condonation deserves to be rejected. Accordingly, it is rejected.
Consequently, further prayer for setting aside abatement order and for staying the impugned order ::: Downloaded on - 09/06/2013 18:04:45 ::: 12 ca14019.10 would not survive.
9. Rule discharged.
sd/-
[S.S. SHINDE, J.] sut/JAN12 ::: Downloaded on - 09/06/2013 18:04:45 :::