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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.B. Vagyani, J.
Sonerao Sadashivrao Patil another..... Petitioners.
Versus
Godawaribai w/o Laxmansingh Gahirewar others..... Respondents.
Civil Revision Application No. 904 of 1990, decided on 23-3-1999.
Advocates appeared :
N.P. Patil and Jamalpurkar, for the petitioners.
A.B. Bajpai, for respondents Nos. 1 to 5.
Section 5-Delay in filing appeal against ex parte decree-Condo-nation-Discretion of Court-Sufficient Cause"-Court to adopt liberal approach in matter of interpretation of phrase "Sufficient cause"-Common sense to be adopted-Duration of delay is insignificant-Only acceptability of explanation to be taken into account.- 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 mater of interpretation of the phrase sufficient cause. This concept is adequately elastic to enable the Court to apply law in a meaningful manner.
Section S-Condo-nation of delay-Liberal approach to be adopted-Courts while dealing with the question have to adopt rational common sense approach-Duration of delay is insignificant-Court has to take into account if there is acceptable or pardonable explanation.-The primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. The rules of limitation are not made to harm the valuable rights of the parties. 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. The requirement of explanation of every days 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 take pragmatic approach while interpreting the concept of sufficient cause. AIR 1987 SC 1353 and (1998) 7 SCC 123, Rel.
Section 5-Condonation of delay-Ex parte decree-Application for setting aside of-Delay in-Condo-nation-Exercise of discretionary power by Court-Held, Court to adopt liberal approach in matter of interpretation of "sufficient cause" as well as rational common sense approach without applying two much rigour of law-Duration of delay is in significant.-Reference with profit can also made to the case of N. Balkrishnan v. M. Krishna Murthy, (1998) 7 SCC 123. The Supreme Court has observed that the rules of limitation are not meant to destroy 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.
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 ignor
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