1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 344 OF 2010 M/s Maizons Coastline Developers Private Limited represented herein by its Directors: a. Mr. Pradeep Pundalik Ghadi Amonkar, son of Mr. Pundalik Ghadi Amonkar, major of age, married, businessman, Indian National, presently residing at La Brag Chambers, Room No.4, First Floor, above Old Mapusa Clinic, Mapusa, Bardez, Goa. b. Mr. Sunil Dattaram Divkar, son of Mr. Dattaram Divkar, major of age, married, business, Indian National, resident of 'Kalindi', Feira-Alta, Mapusa, Bardez-Goa. ... Petitioners versus 1. Mr. Santan Jovito Monteiro, s/o late Mr. Antonio Lourdes Monteiro, aged about 48 years, married, service, and his wife; 2. Mrs. Joy Monteiro, d/o late Mr. Joseph Paes, aged about 48 years, married, housewife, both Indian Nationals, residents of Flat No.F-3, Shiv Smruti Apartments, Feira Alta, Mapusa Goa. ... Respondents 2 Shri Anthony D'Silva, Advocate for the Petitioner. Shri V. Menezes, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 22ND JULY, 2010. ORAL ORDER Defendants' application for condonation of delay in filing first appeal against ex-parte decree has been dismissed. Hence, this Writ Petition. 2. Heard learned Counsel on behalf of both parties. 3. Some facts are required to be stated to dispose off this Writ Petition. 4. The Defendants contested the suit by filing a written statement. Issues were framed. The plaintiff filed her affidavit in evidence. On 18-1-2007, the Defendants filed an application for reframing the issues. Examination-in-chief of the plaintiff was completed on 4-12-2007, and on this day, Advocate Shri Satardekar who was appearing for the Defendants did not appear on that day. Thereafter, the suit proceeded ex-parte and an ex-parte decree followed on 30-6-2008. 3 5. The case of the Defendants is that they came to know about the ex-parte decree only when they received the notice of execution on 27-5-2009. The Defendants then applied for a certified copy of the Judgment/Decree on 4-7-2009 which was provided to them on 7-7-2009. The Defendants chose to file a first appeal against the said ex-parte Judgement/Decree, and, according to them, as there was a delay of about 306 days they filed an application for condonatrion of delay. The Defendants have computed the said delay from the date of ex-parte Judgment/Decree and not from 27-5-2009 when they came to know about the ex-parte Judgment. 6. The Defendants are a Private Limited Company. The learned first appellate Court dismissed the Defendants appeal on the ground that the Defendants after filing the written statement had abandoned the suit which statement does not appear to be quite correct in the light of the history of the suit which has been recorded herein before. The learned first appellate Court observed that the Defendants were blaming their advocate for not informing them about the outcome of the suit, and that the Defendants being a company ought to have kept contact with their lawyer. The learned first appellate Court also took note of the fact that the same lawyer was appearing for the Defendants in other proceedings filed against them. This observation of the learned first appellate Court is controverted by Shri D'Silva, learned Counsel on behalf of the Defendants, by making a statement across the Bar that 4 although Shri Satardekar appeared in Special Civil Suit No.82/4/A between the same parties, the said Civil Suit was disposed off much prior to the present Civil Suit, and in the execution proceedings filed therefrom it is Advocate S. Soares who was appearing for the Defendants in the execution proceedings. The statement needs to be accepted more so when it is not controverted by the plaintiff. 7. Shri D'Silva, learned Counsel on behalf of the Defendants has submitted that the Defendants advocate kept the Defendants company entirely in the dark without informing them about the progress of the suit, and because of that, the Defendants ought not to be made to suffer. In this context, Shri D'Silva, learned Counsel has placed reliance on the case of N. Balakrishnan v. M. Krishnamurthy(AIR 1998 SC 3222) wherein the Apex Court had condoned the delay of 883 days as the delay was attributable to the failure of advocate to inform the appellant as well as his failure to take action was found to be satisfactory. The Apex Court has also stated that it must be remembered that in every case of delay there must be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court 5 should lean against acceptance of the explanation. While condoning the delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss. Shri D'Silva, learned Counsel has placed reliance on Sonerao Sadashivrao Patil and another v. Godawaribai Laxmansingh Gahirewar and others(AIR 1999 Bombay 235) wherein it is observed that the expression “sufficient cause” should be considered as adequately elastic to apply the law in a meaningful manner and has reiterated the principle that the length of delay is not the matter and what matters is the acceptability of the explanation as the only criterion. 8. Shri V. Menezes, learned Counsel on behalf of the plaintiff, on the other hand, has submitted that the Defendants conduct is such that they did not even care to approach their advocate for over a period of 306 days and that conduct of the Defendants shows that they were negligent in pursuing the suit. 9. There is no dispute that the Defendants were contesting the suit and it is their advocate who did not appear before the Court on 4-12-2007, and thereafter till the passing of the ex-parte Judgment/Decree on 30-6-2008. The 6 Defendants received notice of execution application on 27-5-2009 and limitation, if any, had to be computed from that date. 10. Shri D'Silva, learned Counsel has further submitted that on coming to know about the ex-parte decree they had immediately applied for a certified copy but due to the procedure followed by the Court of first tracing the records, and then calculating the costs which would be required to be paid for obtaining the certified copy, that their application came to be accepted only on 4-7-2009, and it is for that reason that there was a delay for about 33 days. This position is again not controverted by the plaintiff. 11. Considering that the Defendants were a company, an inanimate entity, the learned first appellate Court ought to have given little more latitude to the Defendants, whilst condoning the delay and who had otherwise engaged an advocate and had remained assured that their advocate would look after the defence taken by them in the said Civil Suit. That he did not do so is another matter. This is not to say that Companies are entitled to any special treatment. It is well settled that a party in the case of this nature ought not made to suffer on account of lapse or negligence on the part of their advocate to pursue the cause. The observations of the Apex Court in Rafiq and another v. Munshilal and another(AIR 1981 SC 1400 could be noted:- 7 “The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest”. 12. The impugned Order of the learned first appellate Court does not appear to have been passed in a sound exercise of discretion, and, therefore needs to be set aside. 13. Consequently, the Writ Petition succeeds. The impugned Order is set aside. The delay, if any, is condoned. The first appeal shall be registered and heard on merits. The Defendants to pay costs of Rs.5000/- to the plaintiff. Costs be paid before the first appellate Court. Both the parties to appear before the first appellate Court on 9-8-2010 at 10.30 a.m. 14. All contentions in the first appeal are kept open. N. A. BRITTO, J. RD 8