1 1017.11-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 1017 OF 2011 Mukund Chunilal Butala and others. ... Appellants. V/s. Taradevi Laxmichand Bhargav and others. ... Respondents. K.C.Nichani i/b. Amit Sheth for the appellants. S.G.Karandikar for respondent Nos.6 and 9. CORAM: R.M.BORDE, J. DATED : 14th November 2011. P.C. : An application tendered by the plaintiffs/ appellants herein seeking condonation of delay of 10 years and 6 months in taking out application for restoration of the suit, which was dismissed for non- prosecution, has been rejected by the 2nd Joint Civil Judge, Senior Division, Alibag. The said order is a subject matter of challenge in this appeal from order. 2. The plaintiffs instituted suit being Special Civil Suit No. 55/1992 claiming specific performance of the agreement allegedly executed by defendant No.1 on 20th September 1990 in favour of the plaintiffs. The suit as originally presented was directed against 2 1017.11-ao defendant Nos.1 to 6 and specific performance was asked against those defendants. However, during continuance of the suit, defendant Nos.7 to 9 tendered an application for their impleadment in the suit which was allowed by the trial Court and they were permitted to be impleaded as party defendants. 3. The suit was prescribed for hearing in the year 1996 and was adjourned from time to time thereafter. Ultimately, on 19th August 1998 when the suit was prescribed for hearing, appellant/ original plaintiffs did not cause appearance and failed to lead evidence, as such the suit came to be dismissed by order dated 19th August 1998. The application seeking restoration of the suit was presented only in 2009 i.e. after lapse of more than 10 years along with application seeking condonation of delay of 10 years and 6 months occurred in presenting the application for restoration. In the application seeking condonation of delay, it is stated by the applicants that plaintiff No.1 was serving as Structural Engineer from 1999 to 2000. That the plaintiffs relied on their advocate who was appearing in their matter but, unfortunately, the advocate could not attend the court as he started practising in High Court, Mumbai. That their advocate did not inform them about the dismissal of the suit so also failed to inform them as regards the dates prescribed for hearing of the matter. According to the appellants, it is not the case that they purposefully remained absent. It is also stated in para-8 of the application that applicant No.1/ plaintiff No.1 had given power of attorney on 17th August 2006 and applicant Nos.2/1 to 2/3 had given power of attorney on 9th July 2008 to one Manohar Prabhudas Khadawala who had applied for certified copies on 12th November 2008 and collected those copies on 28th November 2008 and 3 1017.11-ao thereafter proceeded to present an application seeking restoration of suit along with application for condonaton of delay. The trial Court found that the reasons exhibited by the appellants for seeking condonation of delay of more than 10 years were not sufficient and no sufficient cause has been mentioned. The trial Court, as such, proceeded to reject the application. 4. I have perused the application as well as the impugned order passed by the trial Court and heard arguments advanced by the respective counsel for the parties. 5. The counsel appearing for the appellants vehemently argued that there is sufficient cause exhibited by the appellants/plaintiffs seeking condonation of delay of more than 10 years. She urged that a liberal approach is required to be adopted in such matters and the applications seeking restoration of the suit as well as seeking condonation of delay should not have been rejected merely on technical grounds. The reliance is placed on the judgment in the case of Collector, Land Acquisition v. Mst.Katiji, AIR 1987 SC 1353. The Apex Court has laid down certain principles and has prescribed that the Court shall adopt liberal approach in the matters relating to the condonation of delay. The principles laid down in the judgment read thus: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is 4 1017.11-ao condoned the highest that can happen is that a 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 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.” 6. In the instant matter, the suit was presented by the plaintiffs in the year 1992 and the same was listed for hearing in 1996. From 1996 to 1998 the suit could not be proceeded and the evidence could not be recorded for one reason or the other. On 19th August 1998, when the matter was prescribed for recording of evidence, neither the plaintiffs nor their advocate were present before the Court, as such, suit came to be dismissed. The only reason given in the application for lapse on the part of the plaintiffs to attend the court proceeding is that the plaintiff No.1 was serving as Structural Engineer during period 1999-2000. There is no reason recorded as to why the plaintiffs did not attend proceedings on the given date i.e. 19th August 1998. Even assuming that on the given date for some reason or other 5 1017.11-ao neither the plaintiffs nor their advocate represented the matter, however, the plaintiffs have also failed to take timely steps and tender application for restoration of the suit. The application for restoration was tendered only after lapse of 10 years and 6 month. The delay occurred in presenting application for restoration of suit more than 10 years and 6 months has not be properly explained by the plaintiffs. The plaintiffs claim that plaintiff No.1 was serving as Structural Engineer during 1999-2000. However, there is absolutely no explanation as to why steps were not taken between the period 2000 to 2009 when the application application was presented. On perusal of the application, it also appears that plaintiff No.1 had appointed power of attorney in the year 2006. However, the power of attorney holder in spite of having knowledge in respect of progress of the matter did not take timely steps and the application for restoration was presented only in the year 2009. There is absolutely no sufficient cause shown for condonation of such huge delay of 10 years and 6 months which occurred in presenting application for restoration of the suit. The trial Court has adopted proper approach and is justified in turning down the application for condonation of delay. I do not find any merit in this appeal from order. Appeal from order is, thus, dismissed. (R.M.BORDE, J.)