1 C.A. 3905/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, APPELLATE SIDE, BENCH AT AURANGABAD C.A. NO. 3905/2011 IN S.A. ST. NO. 6393/2011 Chhagansingh s/o Rajaramsing Rajput died through L.Rs. Smt. Dagadabai @ Laxmibai W/o Chhagansing Rajput and other Vs. Smt. Jamunabai w/o Kanyasing Rajput and others ..... Shri B.R. Kedar, Advocate for applicants Smt. S.D. Tambat, Advocate for respondents No.1, 2, 4 and 6. Mr. V.G. Shelke, A.G.P. for respondents No.7 to 9. ..... CORAM : S.S. SHINDE, J. DATED : 21 st December, 2011. ORAL ORDER: 1. Heard counsel for respective parties. 2. It is the case of the applicants that after passing judgment and decree in R.C.A. No. 59/2005 on 22nd October, 2008 by District Judge – 2, Jalna, applicant No.1 was suffering from severe heart attack and she was regularly required to be attended by the Doctor and therefore, all other applicants were also busy in managing funds and giving treatment to applicant No.1. Ld. counsel appearing for the appellants also invited my attention to Exhibit “A” i.e. medical certificate issued by the Doctor. It is further 2 C.A. 3905/2011 case of the applicants / appellants that there was assurance by the respondents herein, who are original plaintiffs, that the matter would be compromised and they will not press for execution of the decree. Respondents No. 1 to 6 being in near relations of the applicants, the appellants believed them and not filed any appeal challenging the judgment and decree which is under challenge in the present second appeal. It is further submitted that though there was assurance by respondents No. 1 to 6 that they would compromise the matter, ultimately the respondents did not abide by their own assurance or the promise. It is further submitted that the respondents in their affidavit in reply have categorically admitted that applicant No.1 is suffering from heart ailment and she requires treatment. The parties are interse related and therefore, the applicants herein believing the words of the respondents, waited for talks of compromise. The assurance of the respondents ultimately resulted into denial of compromise talks and thereafter, the appellants took steps to file second appeal. Therefore, the counsel appearing for the applicants would submit that the delay in filing second appeal is unintentional. It is further submitted that the provisions of section 5 of he Limitation Act should receive liberal construction and interpretation, and to advance real justice, liberal approach is required to be taken and the matter is required to be really adjudicated on merits. Ld. counsel for the applicants placed 3 C.A. 3905/2011 into service two reported judgments of the Supreme Court. In the case of State of Karnataka V. Y. Moideen Kunhi AIR 2009 S.C. 2577, in particular para 20 of he said judgment. In case of Improvement Trust, Ludhiana Vs. Ujagar Singh & others 2010(4) Supreme 671, ld. counsel placed heavy reliance upon para 14 to 16 of the said Supreme Court judgment and submitted that the application for condonation of delay deserves to be allowed. 3. On the other hand ld. counsel appearing for the respondents invited my attention to the affidavit in reply filed on their behalf. It is submitted that though applicant No.1 is suffering from heart ailment, other applicants were also party / defendants in the appeal before lower appellate Court and therefore, there was no reason why appeal is not filed within time by other applicants. It is further submitted that the medical certificate which is placed on record by the applicants themselves, shows that only for one day the applicant No.1 was hospitalized. It is further submitted that though respondents have admitted in their affidavit in reply that applicant No.1 is suffering from heart disease, however, it is categorically denied that it requires continuous treatment as indoor patient. It is further submitted that there was no any assurance or promise by the respondents for compromise. Therefore, the contention of the applicants that there was assurance by the 4 C.A. 3905/2011 respondents for compromise between the parties in respect of subject matter of the suit property, is not correct. There was never any assurance. There was no any promise by the respondents for compromise. They are decree holders and it is beyond comprehension that why respondents will go to compromise the matter. Therefore, according to the counsel appearing for the respondents, by delaying the proceeding in second appeal, the applicants have enjoyed the benefit from the suit property since they are in possession of the suit property. Therefore, according to the counsel appearing for the respondents, the judgment on which reliance is placed by the counsel appearing for the appellants, are not helpful to the appellants / applicants in the facts of this case. Ld. counsel for the respondents, in support of his contention, submitted that if there is an inordinate delay and delay is not properly explained, then other side has accrued some right in their favour. He placed reliance on expositions of the Supreme Court in case of Balwant Singh Vs. Jagdish Singh & Others reported in 2010 AIR (SC) 3043 and in particular para 16 of the said judgment. The sum and substance of the argument of the counsel appearing for the respondent is that, the delay in filing second appeal is more than 700 days which is intentional and such delay can not be condoned. 5 C.A. 3905/2011 4. I have given due consideration to the rival submissions. Perused the contents of the application and annextures thereto, all other documents placed on record and judgments which are relied upon by the counsels appearing for the parties, the first contention of the counsel appearing for the applicant that applicant No.1 Smt. Jamunabai is suffering from heart ailment and therefore, she was required constant treatment and in the said process, other family members were also busy and as a result, the applicants could not take steps to file second appeal within time is concerned, the medical certificate placed on record by the applicants themselves would show that applicant No.1 was in hospital only for one day. That apart, there are as many as seven applicants. So, nothing prevented other six applicants from filing the appeal within time. It is true that while considering the prayer for condonation of delay, length of delay is not the sole factor to be considered, however the Court is required to consider whether such delay is unintentional or the applicants by delaying filing of appeal, gained some benefits. In the present case, it is admitted position that the applicants herein are in possession of the suit property. There is no proper explanation given in the application for condonation of delay. There is no manner of doubt that the applicants delayed the proceeding for enjoying the fruits from the suit property since the suit property is in their possession. 6 C.A. 3905/2011 5. The second ground which is canvassed by the counsel for the applicants / appellants that there was assurance by the respondents that the matter will be compromised between the parties. However, this is only statement of applicants without leading any evidence, and when the respondents on oath have stated that there was no any assurance by the respondents for compromise in respect of the suit property, in that case, the contention of the applicants that there was assurance by the respondents for compromise, stands negated and same can not be accepted. Therefore, in the facts of this case, it will have to be held that, though applicant No.1 is suffering from heart ailment, there are other six applicants who were also party defendants before the lower appellate Court, who could have filed the second appeal within time. That apart, even the medical certificate which is placed on record along with the application for condonation of delay, shows that applicant No.1 was in hospital for one day. At the cost of repeatation, it is required to be observed that the applicants / appellants are in possession of the suit property and there is every reason to believe that they have got benefit out of delaying the proceeding to file the second appeal. Therefore, in the peculiar facts of this case, when there is delay of more than 700 days in filing second appeal, the reliance placed by the counsel for applicants on the reported judgment of Supreme Court in the case 7 C.A. 3905/2011 of State of Karnataka and in case of Improvement Trust Ludhiana (Supra), is wholly misplaced. It is true that in normal course, the term “sufficient cause” should receive liberal construction / interpretation. However, when there is more than 700 days delay in filing the second appeal and that too when the applicants are in possession of the suit property, and in absence of explanation in detail for 700 days delay, it is difficult to accept the prayer of the applicant that the term “sufficient cause” should receive liberal interpretation, in the present case. The judgments on which the reliance is placed by the counsel appearing for the appellants, proceeds on the footing that, by delaying the proceeding of filing appeal, the applicants / appellants therein have not benefited in any manner. However, in the present case, the appellants / applicants are in possession of the suit property. I also find considerable substance in the arguments advanced by the counsel for respondents that the respondents have accrued some rights since the delay in filing second appeal is more than 700 days. The Supreme Court in the case of Balwant Singh (Supra) in para 16 held :- 16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona 8 C.A. 3905/2011 fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications. 6. Therefore, taking over all view of the matter and in the peculiar facts and circumstances of the case, in my considered opinion, the delay of more than 700 days in filing second appeal can not be condoned. Therefore, the application for condonation of delay should necessarily fail and accordingly, same is rejected. Resultantly, the registration of the second appeal stands refused. The other civil applications if any, stands rejected. ( S.S. SHINDE, J. ) ts k/