1 CAF 4235 OF 2009 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4235 OF 2009 IN FIRST APPEAL (ST) 25610 OF 2009 Municipal Corporation of Greater Mumbia, and anr .. Applicants -versus Nanji Dana Patel .. Respondent. Mr. A. Y. Sakhare, Senior Counsel and Mr. Vinod Mahadik for Applicants Mr. J. Rais i/b Rajesh N. Kachare for Respondent. CORAM: A. S. OKA, J. DATED: 20th April, 2011 P.C. 1. Heard learned counsel appearing for the applicants and learned counsel appearing for the respondent. The delay in preferring appeal is of five years and 543 days. At the outset it must be stated that learned Senior Counsel for the applicants submitted that considering drastic nature of the impugned decree, a case is made out for condonation of delay and considering the delay involved, the applicants are ready and willing to compensate respondents by making payment of costs of Rs.50,000/-. 2. The challenge in first appeal is to the judgment and decree dated 21st April, 2003, passed by the trial Court by 2 CAF 4235 OF 2009 which a declaration is granted that action of demolition initiated under Section 351 of the Bombay Municipal Corporation Act, 1888, is illegal and an injunction has been granted restraining respondent corporation from acting upon or enforcing above notice. Application for certified copy of decree was made on 20th June, 2009 and the certified copy was ready on the same day. The appeal has been filed on 14th October, 2009. 3. Learned counsel appearing for the respondent (original plaintiff) invited attention of the court to various averments made in the reply filed by the respondent. He pointed out that by letter dated 9th November, 2006, sent by respondents to the Assistant Engineer (Maintenance), of the applicants, the attention of the said Officer was invited to the impugned decree by making a specific reference to the suit number and date of the decree. His submission is that the inspection of the relevant record of the Municipal Corporation shows that no steps were taken on the basis of said letter. He submitted that thus, this is a case where at least on 9th November, 2006 applicants were put to notice that impugned decree has been passed. He submitted that there is complete inaction for a period of more than 3 years thereafter and there is no explanation whatsoever for the said inaction. He placed reliance on a decision of Division bench of this Court, in case of State of Maharashtra and ors -vs- Vithu Kalya Govari 3 CAF 4235 OF 2009 and ors, reported in 2008 (6) Mh. L. J. 239. He submitted that application has been filed in a mechanical manner and excuse of official hassle at different levels is no ground to condone the delay especially when the delay is a long delay of more than 6 years. 4. Learned Senior Counsel appearing for the applicants has invited attention of this Court to the affidavits on record and especially affidavits dated 17th March, 2011 and 13th April, 2011. In paragraph 5 of the affidavit dated 13th April, 2011, it is pointed out in what manner the Assistant Law Officers in- charge of the concerned Ward were transferred from time to time at short intervals from June, 2004. Office orders showing the transfers are placed on record. It is pointed out that in the year 2007, City Civil Court for the Western Suburbs was set up at Dindoshi at Goregaon as a result of which a large number of matters transferred to the said Courts were required to be separated. In the affidavit dated 17th March, 2011, it is contended that the work of road widening is required to be immediately undertaken and the impugned decree affects the public work of road widening. 5. In the present case, we are dealing with a public body like Mumbai Municipal Corporation, which is having a large number of matters in the City Civil Court as well as in this Court. It is pointed out that concerned Law Officers looking after the work were transferred from time to time 4 CAF 4235 OF 2009 from 2004 at regular intervals. It is true that the applicants were put to notice of the decree at least on 30th November, 2006, when the communication was served. 6. An occasion for filing an application for condonation of delay arises only when there is some default on the part of a litigant. It is true that no different yardsticks can be applied to the Municipal Corporation. Nevertheless several genuine difficulties have been set out in the affidavits filed on record which make out a case of existence of sufficient cause. Apex Court has always held that justice oriented and liberal approach is required to be adopted while dealing with the application for condonation of delay under Section 5 of the Limitation Act, 1963. 7. In the present case, there is a decree against appellant restraining appellant Corporation from taking action of demolition on the basis of order passed under Section 351 of the said Act. Though the delay is long, the same deserves to be condoned especially when the applicants have shown willingness to compensate respondent by paying a substantial amount of costs. Hence I pass the following order. ORDER. i) Rule is made absolute in terms of prayer clause (a) subject to condition of the applicant paying costs of Rs.50,000/- to the respondent within a period of six weeks 5 CAF 4235 OF 2009 from today. ii) Payment of costs will be a condition precedent. iii) Deposit of the amount of costs within the stipulated period in this Court will be treated as sufficient compliance. (A. S. OKA, J.)