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2009 DIGILAW 486 (BOM)

SK. SAYYED SK. MOHAMMAD v. STATE OF MAHARASHTRA

2009-04-08

S.P.DAVARE

body2009
( 1 ) RULE. Rule made returnable forthwith. Heard by mutual consent. ( 2 ) THE petitioners have filed the present petition assailing the order passed by learned Civil Judge, Senior Division Nanded in Misc. [rje] No. 200/2003 rejecting the application for condonation of delay for filing restoration petitioner misc. [rje] No. 17/2001 which was dismissed on 10-1-2003. ( 3 ) IT is contention of the petitioners that they filed Spl. Civil Suit No. 67/1995 before the Civil Judge Senior Division, Nanded for partition and separate possession of the suit property and also declaration that the sale-deed executed by defendant No. 1 i. e. , respondent No. 2 herein in favour of defendant nos. 5 to 7 be declared as null and void and not binding on the plaintiffs (petitioners ). However the said suit was dismissed for default on 29-12-2000. Therefore petitioners (original plaintiffs) preferred application bearing Misc. [rje] No. 17/2001 for restoration of the said suit. However even the said application for restoration also came to be dismissed in default on 10-1-2003. Therefore the petitioners filed another application for restoration of the said application Misc. [rje] No. 17/2001. However there is delay in filing the said application and therefore the petitioners preferred Misc. [rje] No. 200/2003 before Civil Judge, Senior Division, Nanded for condonation of the said delay. However, the learned Civil Judge Senior Division Nanded rejected the said application for condonation of delay on 10-10-2005. Being aggrieved and dissatisfied by the said order, the petitioners have preferred present Civil revision Application requesting to quash and set aside the impugned order. ( 4 ) THE learned counsel Shri S. V. Warad for respondent No. 2 opposed the application vehemently and resisted to grant the prayers made by the petitioners in the present revision application. The learned counsel for respondent No. 3 pointed out that although the present petition was filed in 2005, the learned counsel for the petitioners, have not taken circulation for a period of four years. Moreover it is also submitted that there is delay of about 290 days and the petitioners have failed to prove sufficient cause therefor and has not accounted the said delay properly and therefore the learned Civil Judge, Senior Division, nanded, rightly rejected the said application by reasoned order. ( 5 ) HEARD respective counsel for the parties. Moreover it is also submitted that there is delay of about 290 days and the petitioners have failed to prove sufficient cause therefor and has not accounted the said delay properly and therefore the learned Civil Judge, Senior Division, nanded, rightly rejected the said application by reasoned order. ( 5 ) HEARD respective counsel for the parties. ( 6 ) AT the out set the petitioners submitted that they are old aged persons and petitioner No. 2 is doing labour work at Hyderabad whereas petitioner No. 1 is suffering from Blood Pressure since last ten-twenty years, due to which he could not attend the Court. During cross-examination he stated that he was taking treatment of T. B. in Government Hospital due to which he could not attend the court. The learned judge observed that the petitioners did not file documentary evidence in support of their contentions. However on perusal of the copy of the plaint of Special Suit No. 67 of 1995 it is seen that age of petitioner No. 1 is shown as 60 years and age of petitioner No. 2 is shown as 55 years and they are about 70 to 65 years old presently after the lapse of about almost ten years. Moreover it has come on record during cross-examination itself that the petitioner No. 1 was taking treatment of T. B. in Government Hospital and although the petitioners have not produced cogent record to support their contention, the statement of the petitioner No. 1 which has come in the cross-examination cannot be overlooked. Moreover there is no reason why the petitioners would show their incorrect and inflated ages in the plaint and hence sight cannot be lost of the ages of the petitioners shown in the plaint. ( 7 ) IN the said context learned counsel for the petitioners relied upon the observations made in para 3 to 6 in the case reported at AIR 1987 SC 1353 , collector Land Acquisition, Anantnag and another vs. Mst. Katiji and others, (M. P. Thakkar and B. C. Ray, JJ.) which read thus : 3. "every day's delay must be explained" does not mean that pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. Katiji and others, (M. P. Thakkar and B. C. Ray, JJ.) which read thus : 3. "every day's delay must be explained" does not mean that pedantic approach should be made. Why not every hour's delay, every second's 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 is no presumption that delay is occasioned deliberately, or on account of 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 grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. ( 8 ) THE learned counsel for the petitioners also relied upon the observations made in paras No. 11 and 12 in the case reported at 1999 (2) Mh. L. J. 272 = AIR 1999 Bombay 235, Sonerao Sadashivrao Patil and another vs. Godawaribai laxmansing Gahirewar and others, (B. B. Vagyani, J.) which read thus : "11. In this behalf a reference to the case of Collector, Land Acquisition, anantnag vs. Mst. Katiji, reported in AIR 1987 SC 1353 is necessary. The supreme Court has observed that the message with regard to liberal approach does not appear to have percolate down to all the other Courts in the hierarchy. The following guidelines should be borne in mind while interpreting the concept of sufficient cause : (1) Litigant does not stand benefited by lodging an appeal late; (2) Refusal to condone may result in meritorious matters being thrown out at the very threshold and the cause of justice being defeated; (3) In the matter of explanation of every day's delay, pedantic approach should be avoided. Rational common sense pragmatic approach should be invariably adopted; (4) Substantial justice is to be preferred against technical flaws; (5) There is no presumption that delay is always deliberate; (6) Injustice is to be removed. 12. The primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. Rational common sense pragmatic approach should be invariably adopted; (4) Substantial justice is to be preferred against technical flaws; (5) There is no presumption that delay is always deliberate; (6) Injustice is to be removed. 12. The primary function of a Court is to adjudicate the disputes between the contesting parties and to advance substantial justice. It is to be borne in mind that the rules of limitation are not made to harm the valuable rights of the parties. Reference with profit can also be made to the case of N. Balakrishnan vs. M. Krishna Murty, reported in (1998) 7 SCC 123 = AIR 1998 SC 3222 . 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. " ( 9 ) HENCE considering the observations made by Hon'ble Apex Court in the aforesaid rulings, it is apparent that the approach taken by the learned Civil Judge senior Division, Nanded while rejecting the application for condonation of delay vide impugned order dated 10-10-2005 is not liberal and the said appears to be technical and erroneous. ( 10 ) MOREOVER, considering the facts and circumstances, the delay occurred in preferring the application for restoration, does not appear to be wilful and intentional and same cannot be considered as deliberate and mala fide. ( 11 ) THEREFORE, for imparting substantial justice to the parties, interference in the impugned order under the revisional jurisdiction is necessary. Hence the impugned order passed by the learned Civil Judge, Senior Division Nanded rejecting the application Misc. [rje] No. 200/2003 stands quashed and set aside and delay of 290 days occurred in preferring the application for restoration of misc. [rje] No. 17/2001 stands condoned. ( 12 ) RULE is made absolute in terms of prayer Clause "b" and the Civil revision Application No. 178/2005 stands disposed of accordingly. Order accordingly.