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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

WRIT PETITION NO.1882 OF 2012

Chimabai Shahajirao Wadikar.

.. PETITIONER.

VERSUS

Baswant Gopal Jadhav and ors.

.. RESPONDENTS.

...

Shri Sachin S. Deshmukh, Advocate for Petitioner.

Shri S.N. Morampalle, Advocate for R.No.1.

Shri A.N. Sabnis, Advocate for R.Nos.2 to 4.

...

CORAM : S.S. SHINDE, J.

11th June, 2013.

PER COURT:

1.

This writ petition has been directed against the

order passed by the Court below thereby condoning

delay of 284 days caused in filing appeal. It is

submitted by the learned Counsel for the petitioner

that incorrect facts were stated in the application for

condonation of delay and the appellate Court

accepted those incorrect facts and entertained the

prayer for condonation of delay and condoned the

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delay. He invited my attention to the pleadings in the

petition, grounds taken therein and submitted that

the delay was not properly explained by the

respondent No.1. Therefore, he submits that petition

deserves to be allowed.

2.

The learned Counsel appearing for the

respondents No.2 to 4 has adopted the submissions

made by the learned Counsel for the petitioner and

submitted that the inordinate delay should not have

been condoned by the appellate Court.

3.

On the other hand, learned Counsel for the

respondent No.1, relying upon the reasons recorded

by the appellate Court, submits that respondent No.1

is original plaintiff and he has not gained any undue

advantage by delaying filing of appeal.

4.

In the case of

Collector, Land

Acquisition Anantnag Vs. Ms. Katiji and ors.

Reported in AIR 1987 SC 1353, in paragraph 3,

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the Apex Court observed:

“3

The legislature has conferred the

power to condone delay by enacting S. 5 of

the Indian Limitation Act of 1963 in order

to enable the Courts to do substantial

justice to parties by disposing of matters

on ‘merits’. The expression “sufficient

cause” employed by the legislature is

adequately elastic to enable the Courts to

apply the law in a meaningful manner which

subserves the ends of justice that being

the life purpose for the existence of the

institution of Courts. It is common

knowledge that this Court has been making

a justifiably liberal approach in mattes

instituted in this Court. But the message

does not appear to have percolated down to

all the other Courts in the hierarchy.

And such a liberal approach is adopted on

principle as it is realized that:-

(1)

Ordinarily a litigant does not stand

to benefit by lodging an appeal late;

(2)

Refusing to condone delay can result

in meritorious matter being thrown out at

the very threshold and cause of justice

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being defeated. As against this, when

delay is condoned the highest that can

happen is that cause would be decided on

merits after hearing the parties.

(3)

“Every day’s delay must be

explained” does not mean that a

pedantic approach should be made. Why not

every hours delay, every seconds delay?

The doctrine must be applied in a

rational common sense pragmatic manner.

(4)

When

substantial

justice

and

technical considerations are pitted

against each other, cause of substantial

justice deserves to be preferred for the

other side cannot claim to have vested

right in injustice being done because of

a non deliberate delay.

(5)

There was no presumption that delay

is occasioned deliberately, or on account

culpable negligence, or on account of

mala fides. A litigant does not stand to

benefit by resorting to delay in fact he

runs a serious risk.

(6)

It must be grasp that judiciary is

respected not on account of its power to

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legalize injustice on technical grounds

but because it is capable of removing

injustice and is expected to do so.”