reported in (1998) 7 Supreme Court Cases 123 the Supreme
Court has held 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 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 a want of
acceptable explanation whereas in certain other cases, delay of a
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 revisional jurisdiction,unless the exercise of
discretion was on wholly untenable grounds or arbitrary or
perverse. But, it is a different matter when the first court refuses
to condone the delay, In such cases, the superior court 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
untrammelleld by the conclusion of the lower court.
10. The Supreme Court proceeds to observe that the
reason for such a different stance is that the primary function of
the court is to adjudicate the dispute between the parties and to
advance substantial justice.
The rules of limitation are not meant to destroy the
rights of parties. They are meant to see that parties do not resort
to dilatory tactics but seek their remedy promptly.
11. A court knows that refusal to condone delay would
result in foreclosing a suitor from putting his cause. There is no
presumption that delay in approaching the court is always
deliberate. The expression “suffiicient cause” should receive a
liberal construction so as to advance substantial justice. 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
sufficient to turn down his plea and to shut the door against
him. While condoning the delay, the court should not forget the
opposite party altogether. It must be borne in mind that he is a
loser and he too would have incurred quite 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.
12. Having considered the rival contentions and
perusing the material on record, delay can be condoned subject
to payment of exemplary costs. An Applicant seeking
condonation of delay has to state the true and factual
particulars. The fact that the delay was only of 54 days, does
not dispense with the requirement stating the true and correct
facts. If indeed Advocate Mr.Mukesh Sangani was engaged to
only instuct Mr.Thakkar who was actually entrusted with the
matter, this fact should have been reflected in the Application
seeking condonation of delay. Nevertheless, this is a fit case
where the explanation now submitted by Ms.Shivani Shah can
be accepted. This is because, the explanation is a plausible
explanation. Besides, it cannot be said that the Applicant has
gained substantially by omitting reference to Mr.Thakkar.
13. Upon taking into consideration all these
circumstances, delay can be condoned. However, the
Respondent will have to be suitably compensated because for
no fault of the Respondent it is the Respondent who shall suffer
real prejudice. The Respondent has not only been deprived of
possession of the suit premises but, further there is bound to be
delay if the Appeal is to be heard on merits. Almost two years
have passed since the Respondent has obtained the eviction
decree. The prejudice is therefore required to be compensated
by costs. For all this, the Petitioner, as condition precedent for
condonation of delay, is liable to pay costs quantified at
Rs.1,00,000/.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
CIVIL WRIT PETITION NO.2825 OF 2017
Dr.Ashok Rajmal Mehta v M/s Shree Tirthankar Co
CORAM : M.S.SONAK, J
DATE: 5th OCTOBER 2017
1. Heard Ms.Shivani Shah for the Petitioner and
Mr.Sameer Bhalekar for Respondent.
2. Rule.
3. With consent and at the request of learned counsel
for the parties, Rule is made returnable forthwith.
4. The challenge in this Petition is to the impugned
order dated 1.12.2016 by which the Appellate Bench of the
Small Causes Court has refused to condone the delay in
institution of a Revision against the Judgment and decree dated
4.1.2016 which directed eviction of the Petitioner. In this case,
the delay in insititution of the Revision was of 54 days.
However, the Appeal Bench has come to the conclusion that no
sufficient cause was shown and further cause which was shown
was false and reason stated was also false.
5. The Petitioner in the Application seeking
condonation of delay had stated that the matter was entrusted
to one Advocate Mr.Mukesh Sangani for the purpose of
institution of a Revision. However, there was delay on the part
of Advocate Mr.Mukesh Sangani and therefore, the Revision
could not be instituted within the prescribed period of
limitaiton.
6. The Appeal Court has held that the material on
record indicates that Advocate Mr.Mukesh Sangani had nothing
to do with the matter and who was entrusted the matter, was
Mr.Thakkar. The Appeal Court has held that since a false case
was set out, there was no reason to condone the delay.
7. Ms.Shivani Shah learned counsel for the Petitioner
points out that Mr.Mukesh Sangani was engaged to instruct
Mr.Thakkar and it is in this context that reference was made to
Mr.Mukesh Sangani. She points out that there was no intention
to make any false statement or to suppress the facts. She points
out that the Petitioner has really gained nothing by misstating
or attempting to misstate any fact. She submits that this is a fit
case for condonation of delay and at the highest, by imposition
of some reasonable costs.
8. Mr.Sameer Bhalekar learned counsel for the
Respondent submits that in such matters the quantum of delay
is not relevant but, the cause shown is relevant. Since a false
ground was raised, the Appeal Court was justified in declining
the condonation. He submits that decree in the present case was
made on 4.1.2016 and till date the decree has not been
executed for reasons attributable to the Petitioner. Valuable
time has been spent and severe prejudice will result to the
Respondent if delay is condoned and Appeal is restored for
hearing on merits.
9. In N.BALAKRISHNAN VS M.KRISHNAMURTHY
reported in (1998) 7 Supreme Court Cases 123 the Supreme
Court has held 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 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 a want of
acceptable explanation whereas in certain other cases, delay of a
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 revisional jurisdiction,unless the exercise of
discretion was on wholly untenable grounds or arbitrary or
perverse. But, it is a different matter when the first court refuses
to condone the delay, In such cases, the superior court 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
untrammelleld by the conclusion of the lower court.
10. The Supreme Court proceeds to observe that the
reason for such a different stance is that the primary function of
the court is to adjudicate the dispute between the parties and to
advance substantial justice.
The rules of limitation are not meant to destroy the
rights of parties. They are meant to see that parties do not resort
to dilatory tactics but seek their remedy promptly.
11. A court knows that refusal to condone delay would
result in foreclosing a suitor from putting his cause. There is no
presumption that delay in approaching the court is always
deliberate. The expression “suffiicient cause” should receive a
liberal construction so as to advance substantial justice. 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
sufficient to turn down his plea and to shut the door against
him. While condoning the delay, the court should not forget the
opposite party altogether. It must be borne in mind that he is a
loser and he too would have incurred quite 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.
12. Having considered the rival contentions and
perusing the material on record, delay can be condoned subject
to payment of exemplary costs. An Applicant seeking
condonation of delay has to state the true and factual
particulars. The fact that the delay was only of 54 days, does
not dispense with the requirement stating the true and correct
facts. If indeed Advocate Mr.Mukesh Sangani was engaged to
only instuct Mr.Thakkar who was actually entrusted with the
matter, this fact should have been reflected in the Application
seeking condonation of delay. Nevertheless, this is a fit case
where the explanation now submitted by Ms.Shivani Shah can
be accepted. This is because, the explanation is a plausible
explanation. Besides, it cannot be said that the Applicant has
gained substantially by omitting reference to Mr.Thakkar.
13. Upon taking into consideration all these
circumstances, delay can be condoned. However, the
Respondent will have to be suitably compensated because for
no fault of the Respondent it is the Respondent who shall suffer
real prejudice. The Respondent has not only been deprived of
possession of the suit premises but, further there is bound to be
delay if the Appeal is to be heard on merits. Almost two years
have passed since the Respondent has obtained the eviction
decree. The prejudice is therefore required to be compensated
by costs. For all this, the Petitioner, as condition precedent for
condonation of delay, is liable to pay costs quantified at
Rs.1,00,000/.
14. This Petition is therefore, disposed of with the
following order :
O R D E R
(a) The impugned order dated 1.12.2016 made by
the Appellate Bench of the Small Causes Court declining
to condone the delay is set aside. The delay in institution
of the Revision is hereby condoned ;
(b) The aforesaid shall be subject to the Petitioner
depositing before the Appeal Bench costs of Rs.1,00,000/
within a period of two weeks from today ;
(c) In case the amount of costs are not deposited
within a period of two weeks from today, this Petition
shall be deemed to have been dismissed without any
reference to this Court ;
(d) Upon deposit of costs, the Respondent shall be
entitled to withdraw the same unconditionally ;
(e) For a period of six weeks from today,
execution of the impugned decree is stayed ;
(f) The Petitioner after deposit of amount of
costs, may apply to the Appeal Court for interim reliefs in
the meanwhlle ;
(g) The Appeal Court to consider the application
for interim relief on its own merits without being
influenced by the interim order granted by this Court. If
the Appeal Bench comes to the conclusion that any case is
made out for grant of interim relief, there is no doubt that
the Appeal Bench will impose suitable condition upon the
Petitioner in the light of the ruling of the Hon'ble Supreme
Court in the case of ATMA RAM PROPERTIES VS
FEDERAL MOTORS PVT.LTD reported in (2005) 1 SCC
page 705 and STATE OF MAHARASHTRA & anr VS
SUPER MAX INTERNATIONAL PVT.LTD reported in
2009 (5) ALL MR page 1001.
(h) Further, it is made clear that in case the
amount of costs are not deposited within a period of two
weeks, this interim protection now granted will stand
vacated without further reference to this Court.
15. Rule is made absolute to the aforesaid extent.
All concerned to act on the basis of an
authenticated copy of this order.
(M.S.SONAK, J)
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