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2022 Supreme(Bom) 1423
IN THE HIGH COURT OF JUDICATURE AT BOMBAY GOA BENCH
A.K. Menon, J.
Sunandabai Yellurkar & Others - Appellant
Versus
Confraria De N. S. Das Merces Of Chapel Of Vadem & Anr. - Respondents
Miscellaneous Civil Application No. 22532, 533 of 2021 (F) In Second Appeal No. 56 of 2009
Decided On : 30-03-2022
Sailee R. Kenny, Advocate, Somnath Karpe, Advocate
Unsatisfactory reasons and insufficient grounds for condoning delay may lead to the dismissal of an application for condonation of delay.
Headnote:
Delay Condonation - Restoration of Second Appeal - The court dismissed the application for condonation of delay of 3730 days in restoring the Second appeal, citing unsatisfactory reasons and insufficient grounds for condoning the delay.
Fact of the Case:
The applicants sought restoration of the Second appeal, which was dismissed for non-prosecution with a delay of 3730 days. The applicants, including a 95-year-old appellant and others, cited health issues and lack of awareness as reasons for the delay.
Finding of the Court:
The court found the reasons given by the applicants unsatisfactory and insufficient for condoning the delay. It noted that a previous application for condonation of delay had been withdrawn with liberty to file an appropriate application, yet the present application was filed much later.
Issues: The main issue was whether the delay of 3730 days in seeking restoration of the Second appeal should be condoned based on the reasons provided by the applicants.
Ratio Decidendi: The court decided that the reasons stated in the application for condoning the delay were completely unsatisfactory, leading to the dismissal of the application for condonation of delay and the disposal of the application seeking restoration as infructuous.
Final Decision: The court dismissed the application for condonation of delay and disposed of the application seeking restoration as infructuous.
JUDGMENT
a.K. Menon, J. - Miscellaneous Civil application No. 2532 of 2021 (F) primarily seeks restoration of the Second appeal, which came to be dismissed on 12.08.2011 for non prosecution. There is a delay of 3730 days i.e. about 10 years 2 months and 21 days. Miscellaneous Civil application No. 2533 of 2021 (F) has been filed for condonation of that delay.
2. The learned Counsel for the applicants in support of her application submits that the applicant no. 1 was 95 years old when the matter came to be dismissed for want of prosecution. Thereafter, the advocate for the applicants/appellants was granted discharge and the applicants were unaware of the fact that the appeal was dismissed. The cause title indicates that there were four appellants in all. On a query from the Court as to the age of the second appellant/applicant no. 2, the learned Counsel for the applicants relied upon a medical certificate stating that the applicant was suffering from psychosis and was advised treatment. The certificate is issued by Dr. Venkatesh Hegde of Sri Sri Kripa Clinic and Sai Lab. The certification is in respect of state of health of one Yeshwant Yellurlar, who is not an appellant. It appears that he is the father of one of the appellants. On a query from the Court as to why the other appellants were not attending to this matter, my attention is invited to paragraph 8 of the application. Paragraph 8 of the application reads as follows:
'The appellant no. 1 states that being 95 years of age at the time of dismissal of the appeal, she could not follow up with the matter regularly on account of various health issues. That the appellant nos. 2 and 3 being married daughters of the appellant were residing at Margao and Mapusa respectively and were unaware of the proceedings in the court.'
3. To my mind, the reasons given in paragraph 8 of the application are unsatisfactory and insufficient for condoning the delay of 3730 days. Furthermore, it is pointed out on behalf of respondent no. 1 that earlier, an application (Miscellaneous Civil application No. 505 of 2015) for condonation of delay had been filed, which came to be withdrawn, albeit, with liberty to file appropriate application. It is material to note that Miscellaneous Civil application No. 505 of 2015 was allowed to be withdrawn on 29.09.2017, when the appellants were represented by an advocate. Despite that liberty granted on 29.09.2017, the present application is filed only on 30.11.2021. The reasons stated in the application for condoning the unconscionable delay are completely unsatisfactory.
4. In view thereof, I find no merit in the application for condonation of delay and the same is dismissed. Consequently, the application seeking restoration is disposed as infructuous.
