Bombay High Court
Sonerao Sadashivrao Patil & Another vs Godawaribai W/O Laxmansingh Gahirewar ... on 23 March, 1999
Equivalent citations: AIR1999BOM235, 2000(1)BOMCR111, 1999(2)MHLJ272, AIR 1999 BOMBAY 235, (1999) 3 CIVILCOURTC 120, (1999) 2 MAH LJ 272, (2000) 1 MAHLR 182, (1999) 3 CIVLJ 454, (1999) 2 CURLJ(CCR) 614, (1999) 3 CURCC 483, (1999) 2 ALLMR 507 (BOM), (2000) 1 BOM CR 111
Author: B.B. Vagyani
Bench: B.B. Vagyani
ORDER B.B. Vagyani, J.
1. Heard Shri Patil, learned Advocate for the petitioners and Shri Bajpai, learned Advocate for the respondents Nos. 1 to 5. The respondent No. 6 is duly served.
2. This Civil Revision Application, Latur raises a question as to how the concept of sufficient cause in the matter of condonation of delay is to be interpreted and what should be the approach of the Court in exercising the discretionary power in this behalf.
3. The Respondents Nos. 1 to 5 herein (original plaintiffs) had filed Regular Civil Suit No 56 of 1983 in the Court of Civil Judge, Junior Division, Nilanga of district Latur. The suit was for partition and separate possession of the suit property. The respondent No. 6 herein -- original defendant No. 1 is the husband of plaintiff No. 1 Godawaribai and father of original plaintiffs Nos 2 to 5. The said suit was proceeded ex parte and was ultimately decreed on 14th October, 1986.
4. The original defendants Nos. 2 and 3 wanted to challenge the ex parte decree. There was delay of 104 days. The original defendants Nos. 2 and 3, therefore, filed Misc. Civil Application No. 19 of 1987 for condonation of delay. It was the case of the defendants that there was a compromise between them and the husband of Godawaribai. The compromise was arrived at on 17-8-1984. The parties to the settlement wanted to file compromise pursis in Regular Civil Suit No. 56 of 1983. However, it was not filed. The husband of Godawaribai assured the petitioners that the suit would be compromised. The petitioners believed the assurance of the husband of Godawaribai and remained silent. The terms of the compromise were reduce to writing and, therefore, the petitioners were little bit slow. The husband of Godawaribai did not take any steps and, therefore, delay was caused in filing the Civil Appeal.
5. The learned Additional District Judge, Latur, rejected the application for condonation of delay on two grounds, firstly that the petitioners committed utter negligence in prosecuting their right of appeal and secondly, that the petitioners miserably failed to prove just and sufficient cause for delay in filing the Civil Appeal. Consequently, by his order dated 4th October, 1990 the Additional District Judge, Latur rejected the application for condonation of delay.
6. The learned advocated Shri N.P. Patil for the petitioner, vehemently submitted that the petitioner had good and sufficient cause for not preferring the appeal and, therefore, the learned Additional District Judge should have condoned the delay of 104 days. As the matter was compromised in between the husband of Godawaribai and the petitioners, the petitioners were little bit inactive. According to Shri Patil, Advocate the petitioners have made out a good case for condonation of delay. He also submits that the petitioners were not at all negligent in prosecuting their right of appeal.
7. On the other hand, the learned Advocate Shri Bajpai for the respondents, has strongly supported the impugned order passed by the learned Additional District Judge, Latur. According to him, there was inordinate delay and, therefore, the rejection order is proper.
8. I gave anxious consideration to the rival submissions made at the Bar. The Court is armed with power to condone the delay. The discretion is given to the Court to condone delay and admit the appeal in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. If the spirit behind the empowerment of discretionary power on the Court is taken into consideration, it is beyond doubt clear that the Court is required to adopt liberal approach in the matter of interpretation of the' phrase "sufficient cause". This concept is adequately elastic to enable the Court to apply law in a meaningful manner.
9. On close perusal of the impugned order passed by the learned Additional District Judge, Latur, it prima facie appears to me that the philosophy and the spirit have been completely ignored. The learned Additional District Judge should have taken a pragmatic view of the matter while deciding the application for condonation of delay. The learned Additional District Judge, on the contrary, has taken pedantic approach, it appears that the learned Additional District Judge has been swayed away on account of the period of delay. Admittedly, there was a delay of 104 days. Treating this delay as inordinate delay, the learned Additional District Judge went on to comment that the courts are required to get satisfied the delay of each and every day that occurred in filing an appeal and that delay must be satisfactorily explained in terms of just and sufficient cause.
10. This approach of the learned Additional District Judge is erroneous. The learned Additional District Judge has unnecessarily stretched the idea of explaining every day's delay too far. The requirement of explanation of every day's delay does not mean that a pedantic approach should be taken. The courts are required to adopt rational common sense approach. The courts are required to adopt rational common sense approach. The Courts are required to take pragmatic approach while interpreting the concept of sufficient cause. The Supreme Court has shown displeasure in this behalf. The message of liberal approach in the matter of interpretation of sufficient cause has not shown its effect on lower judiciary.
11. In this behalf a reference to the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji and others, , is necessary. The Supreme Court has observed that the message with regard to liberal approach does not appear to have percolated down to all the other courts in the hierarchy. The following guidelines should be born in mind while interpreting the concept of sufficient cause:
(1) Litigant does not stand benefitted by lodging an appeal late;
(2) Refusal to condone may result in meritorious matters being thrown out at the very threshold and the cause of justice being defeated; (3) In the matter of explanation of every day's delay, pedantic approach should be avoided. Rational common sense pragmatic approach should be invariably adopted; (4) Substantial justice is to be preferred against technical flaws; (5| There is no presumption that delay is always deliberate; (6) Injustice is to be removed.
12. The primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. It is to be born in mind that the rules of limitation are not made to harm the valuable rights of the parties. Reference with profit can also be made to the case of N. Balkrishnan v. M. Krishna Murthy, . The Supreme Court has observed that the rules of limitation are not meant to de-
stroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics. The Supreme Court has further observed that section 5 of the Limitation Act does not say that the discretion given to the Court can be exercised only if delay is within a certain limit. Length of delay is not the matter, acceptability of explanation is the only criterion.
13. It is clearly seen from the order of the learned Additional District Judge that the petitioners have placed on record sufficient and convicting evidence in order to show that in fact there was settlement in between them and the husband of Godawaribai. The learned Additional District Judge has accepted the oral evidence tendered by the petitioners in this behalf. The written compromise Exh. 30 has been placed on record. The learned Additional District Judge has come to the conclusion that the oral evidence brought by the petitioners can be acted upon to hold that there was some settlement of dispute between the husband of Godawaribai and the petitioner No. 1. It is interesting to note that this compromise was arrived at on 17-8-1984. Because of assurance of husband of Godawaribai, the petitioners were little bit slow. But if the factual aspect with regard to compromise is taken into account, there is no manner of doubt that the petitioners had sufficient cause in their favour. The learned Additional District Judge has adopted a very narrow and rigid approach rather than taking a pragmatic approach. The too much rigour of the law is not justice but the denial of it. It is to be born in mind the maxim, "Summum Jus Summa Injuria". Extreme law is extreme injury. The learned Additional District Judge has been impressed much on account of duration of delay. In the matter of condonation of delay, the duration of delay is insignificant. The Court has to take into account whether there is acceptable explanation or pardonable explanation. In this particular case, the petitioners have satisfied that they had sufficient cause for not preferring the appeal.
14. In the result, this Civil Revision Application is allowed. The impugned order dated 4-10-1990 passed by the 3rd Additional District Judge, Latur, is hereby quashed and set aside. The delay is condoned. The Miscellaneous Civil Application for condonation of delay is hereby allowed. Regular Civil Appeal be registered and numbered. The learned District Judge, Latur is hereby directed to dispose of the Regular Civil Appeal as early as possible. Rule made absolute with no order as to costs. Interim relief stands vacated.
15. Revision application allowed.