Basic principles to be followed by court for condonation of delay

   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/­.
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)