- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. MISCELLANEOUS CIVIL APPLICATION NO. 543 of 2010 IN STAMP NUMBER M AIN NO. 1342 OF 2010. Mr.Antonio Sequeira Coutinho Pereira, R/o. Mayem, Bicholim. .......... Applicant. Versus 1 The Mayem Nagrik Kruti Samiti, through its president, Shri Kashinath Dongrekar alias Mayemkar, Residing at Aldonwadi, Mayem, Bicholim Goa. 2 Shri Sasheshwar Saskriti Kala Krida Mandal at Sawanwada, Village Mayem, Taluka Bicholim-Goa. 3 Shri Ladko (Ladu) Harishcandra Kinalkar, President of Shri Sasheshwar Saskriti Kala Krida Mandal, resident of Sawanwada, Village Mayem, Taluka Bicholim-Goa. 4 Shri Sachin Gajanan Ghadi, Acting President of Shri Sasheshwar Saskriti Kala Krida Mandal, resident of Sawanwada, Village Mayem, Taluka Bicholim-Goa. - 2 - 5 Shri Vishnu Gaensh Kedar alias Mali, Secretary of Shri Sasheshwar Saskriti Kala Krida Mandal, resident of Sawanwada, Village Mayem, Taluka Bicholim-Goa. 6 Shri Popat Datta Ghadi, Treasurer of Shri Sasheshwar Saskriti Kala Krida Mandal, resident of Sawanwada, Village Mayem, Taluka Bicholim-Goa. 7 Shri Jayavant Tari, The Custodian of Evacuee Property, having its office at the Captain of Ports Building, Panaji Goa. 8 Shri Daniel Mendes, Assistant Mangaer of Custodian of Evacuee Property, having its office at Sawanwada, Mayem, Bicholim Goa. 9 The Village Panchayat of Mayem, Vaiguinim, through its Sarpanch, having office at Mayem, Bicholim, Goa. 10 The State of Goa, through its Chief Secretary, having its office at the Secretariat, Panaji Goa. .......... Respondents. - 3 - Mr. V. R. Tamba, and Mr. D. Zaveri, Advocates for the applicant. Mrs. A. Agni, Advocate for the respondent nos. 1 to 6. Mr. V. Rodrigues, Additional Government Advocate for respondent nos. 7, 8 and 10. None for the respondent no. 9 though served. Coram:-A. P. LAVANDE,J Reserved on:- 19th July, 2011. Pronounced on:-1th August, 2011. ORDER Heard Mr. V. R. Tamba, learned Advocate for the applicant, Mrs. A. Agni, learned Advocate for the respondent nos. 1 to 6 and Mr. V. Rodrigues, learned Additional Government Advocate for respondent nos. 7, 8 and 10. 2. By this application filed under Section 5 of the Limitation Act the applicant seeks condonation of delay of 1845 days in filing appeal against order dated 20.1.2005 passed by learned Additional District Judge at Mapusa in Civil Suit No. 60/2004. - 4 - 3. It is the case of the applicant that Civil Suit No. 60/2004 was filed by him through power of attorney Ms. Andreza alias Candida de Souza, since he was forced to be out of Goa for personal security reasons. On 20.8.2000 a mob of 200 armed persons led by respondent no.1 demolished the compound wall of his house and chapel and caused damage. Since police was not taking action, he filed Writ Petition in the High Court which was disposed of on 21.1.2002. The applicant filed Special Leave Petition before the Apex Court which was disposed of and the matter was remanded to this Court for passing appropriate orders. It is further the case of the applicant that the applicant and his attorney were continuously harassed and threatened with dire consequences and it was difficult for him to live in Goa and as such he filed above suit through power of attorney. It is further the case of the applicant that he was forced to leave Goa on account of security reasons prior to filing of the suit. The attorney is not well versed with due process of law. The applicant was forced to assign the matter to her to protect his interest. The attorney reposed faith in trial Court Advocate. It is further the case of the applicant that Advocate who was representing the plaintiff in the suit was ignoring the attorney of the applicant and her calls and she informed him about - 5 - the conduct of the trial Court Advocate somewhere in the last week of February, 2010. Thereafter in first week of March, 2010, upon making inquiries applicant learnt that suit was dismissed on 20.1.2005. The Trial Court advocate did not even return the file and certified copies of the order and roznama were obtained. In support of the application, the applicant filed his own affidavit as well as affidavit of his attorney Ms. Andreza alias Candida de Souza, who has also filed affidavit on similar lines. 4. On behalf of respondent nos. 1 to 6 reply has been filed denying the case of the applicant in general. It is the case of these respondents that the applicant was in Goa throughout and there was another suit bearing No. 57/2004 filed by Custodian of Evacuee property against Saseshwar Devasthan wherein the applicant is a party. Upon dismissal of the said suit, the applicant had written to the Custodian vide letter dated 18.10.2006, interalia, stating that the applicant had personally inspected the file of Civil Suit No. 57/2004 and in the said letter address of the applicant was shown at Mayem. Respondent nos. 1 to 6 have relied upon the copy of the said letter dated 18.10.2006. It is further the case of these respondents that - 6 - respondent no. 4 is the neighbour of the applicant and he had personally seen him residing in the house at Mayem since January, 2005. It is further the case of these respondents that no dates are given by the applicant as to when he left Goa or as to when he returned to Goa and this is on account of the fact that the applicant had not left Goa as claimed by him. The applicant has filed rejoinder denying the case set up by respondent nos. 1 to 6 in the reply. 5. Mr. Tamba, learned Counsel for the applicant in support of the application for condonation of delay submitted that the grounds set out by the applicant for seeking condonation of delay of 1845 days have to be accepted in the absence of any averments by the respondents that delay is malafide, dilatory or intentional. According to learned Counsel the attendance of the plaintiff was not required and as such plaintiff was entitled to rely upon his attorney who had engaged an advocate to represent the applicant but the advocate did not even bother to inform the attorney of the plaintiff about the dismissal of the suit, but on the contrary gave evasive replies. According to learned advocate, the applicant has made out sufficient cause for condoning the delay inasmuch as it is not the length of the delay but the cause shown - 7 - by the party which has to be considered while considering the application for condonation of delay. According to learned advocate, there is absolutely no reason for not condoning the delay in filing the appeal and if delay is not condoned serious prejudice would be caused to the applicant. In support of his submissions Mr. Tamba relied upon following judgments:- i. Smt. Sandhya Rani Sarvar Vs. Smt. Sudha Rani Debi and others; (1978) 2 SCC 116. ii. N. Balakrishnan Vs. M. Krishnamurthy; (1998) 7 SCC 123 iii. Ram Nath Sao Vs. Gobardhan Sao, (2002) 2 SCC 195. iv. Mrs. Ana Vitoria Vieira Dalgado Vs.Mr. Geraldo Lobo, order dated 2.7.2011 passed by this Court in Civil Revision Application no. 3/2011. v. Prakash Seshmal Jain Vs. Sukhmal & sons and others; (1998) 9 SCC 718. vi. Improvement Trust, Ludhiana Vs. Ujagar Singh and others; (2010) 6 SCC 786. vii State of M. P. and another Vs. Pradeep Kumar and - 8 - another; (2000) 7 SCC 732. 6. Per contra, Mrs. Agni, learned advocate appearing for respondent nos. 1 to 6 submitted that actually the delay is of 1962 days and not 1845 days and there is absolutely no cause shown by the applicant for condoning the delay. According to learned advocate no affidavit of advocate appearing in the trial Court has been filed by the applicant in support of the application seeking condonation of delay. Learned advocate further submitted that there is absolutely no material on record to establish that the applicant was not in Goa from 2005 to February, 2010, but on the contrary, the letter dated 18.10.2006 addressed by the applicant to the Custodian of Evacuee property establishes that in the year 2006, the applicant was in Goa and as such, the applicant has not come to this Court with clean hands but has resorted to falsehood. According to learned advocate it is not mandatory for the respondents to mention that the delay is mala fide, dilatory or intentional and the same has to be found out from the material produced by both the parties. According to learned advocate the case set up by the applicant that his attorney was harassed, is not the case set up by the attorney herself. According to learned advocate - 9 - the applicant having suppressed the fact and having come up with a case that he was not in Goa from filing of the suit till about February, 2010 which is belied by the letter of the applicant dated 18.10.2006, the applicant is not entitled to any discretionary relief under Section 5 of the Limitation Act. In support her submissions, Mrs. Agni, relied upon following judgments:- i. Parimal Vs. Veena; 2011 AIR SCW 1233. ii. Lanka Venkateshwarlu V. State of A.P.; 2011 AIR SCW 1459. iii. Pundalik Jalam Patil Vs. Executive Engineer, Jalgaon; 2008(17) SCC 448. iv. Balwant Singh Vs. Jagdish Singh; (2010) 8 SCC 685. 7. Mr. Rodrigues, learned Additional Government Advocate appearing for respondent nos.7, 8 and 10 have left the matter to this Court. 8. I have carefully considered the rival submissions, perused the record and judgments relied upon by both sides. - 10 - 9. Before dealing with the factual aspects of the matter it would be appropriate to deal with the authorities cited by both sides. 10. Following propositions emerge from the authorities cited by Mr. Tamba, on behalf of the applicant. i. In an application for condonation of delay the applicant has to satisfy the delay in filing the appeal till the date of filing of appeal and not till the date of filing of the application for condonation of delay, if the same is filed after filing of the appeal. ii. The words “sufficient cause' should be liberally construed and acceptability of explanation for delay is sole criterion and the length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay or any dilatory tactics, the Court should normally condone the delay. In the absence of negligence, in absence of lack of bonafides delay has to be condoned depending upon the facts of the particular case and there cannot be strait jacket formula for condoning the delay. iii. A party who is not well versed with law is supposed to rely upon the advice given by his/her advocate and any delay caused on - 11 - account of such advice must ordinarily be condoned. A litigant cannot be made to suffer on account of fault on the part of his/her advocate and the conduct of the party has to be seen and normally attempts must be made to allow the matter to be contested on merit rather than to throw it on technicalities. iv. An application for condonation of delay can be filed even after filing of the appeal which is time barred. 11. Following propositions emerge from the judgments relied upon by Mr. A. Agni, learned Advocate appearing on behalf of respondent nos. 1 to 6. i. The extent or degree of leniency to be shown by the Court depends on the nature of the application and facts and circumstances of the case and Courts view delay in making application in a pending appeal more leniently than delays in the institution of an appeal. The Courts view applications relating to lawyer's lapses more leniently than the applications relating to litigant's lapses. ii. Incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application - 12 - reveal sufficient cause to condone the delay; a party taking a false stand to get rid of the bar of limitation, should not be encouraged to get any premium on the falsehood on its part by condoning the delay. iii. The discretion to condone the delay has to be exercised in judicious manner and the Court has to adopt liberal approach but the same should not be employed to jettison law of limitation. 12. From the averments made by the applicant in the application for condonation of delay it is his case that he was forced to leave Goa on account of security reasons prior to filing of the suit which was filed in the year 2004 and he reposed faith in his power of attorney who in turn relied upon the advocate engaged on behalf of the applicant who did not discharge his duties properly on the contrary, gave evasive replies. It is further his case that it was in the last week of February, 2010 that the attorney informed the applicant about the conduct of the advocate and thereafter the applicant made inquiries in the first week of March, 2010 and he came to know that the suit was dismissed by order dated 20.1.2005. The applicant has not stated the exact month or the year in which he left Goa on account of security reasons and his case is that he came to know for the first time about the - 13 - order in first week of March, 2010 when he learnt about the impugned order. Respondent nos. 1 to 6 have denied that the applicant was not in Goa during the relevant period and it is their case that the applicant was in Goa. 13. The respondent nos. 1 to 6 have placed reliance upon the letter dated 18.10.2006 addressed to Custodian of Evacuee property that Civil suit no. 57/2004 was dismissed by order dated 5.4.2006. The said letter clearly establishes that the applicant was in Goa sometime between 4.4.2006 and 18.10.2006. The applicant has nowhere stated in the application that after filing of the suit till he came to know about the order in March, 2010 he had come down to Goa. 14. In paragraph 6(e) of the application, the applicant has stated that he was forced to leave Goa on account of security reasons prior to filing of the suit and on return to Goa he started inquiring in the other matters filed by him. In the absence of any specific date/dates being mentioned in the application regarding leaving Goa and returning to Goa, the legitimate interference which can be drawn is that it is the case of the applicant that he was out of Goa from the period prior to - 14 - filing of the suit till February, 2010. This stand of the applicant is contrary to the record as disclosed by letter dated 18.10.2006 referred to above. Thus, the applicant has not come up with entire truth and with clean hands seeking condonation of delay of 1845 days which is substantial. No doubt mere length of delay by itself is not sufficient to reject the application for condonation of delay as held by the Apex Court. In the case of Pundlik Patil( supra), the Apex Court has held that incorrect statement made in the application seeking condonation of delay is sufficient to reject the application. I am unable to accept the case set up by the applicant that he came to know about the dismissal of the suit only in first week of March, 2010. Therefore, considering totality of facts, I am of the considered opinion that the applicant is not entitled to any discretionary relief under Section 5 of the Limitation Act. 15. Therefore, the ratio of the judgments relied upon by Mr. Tamba do not advance the case of the applicant. 16. For the reasons aforesaid, I do not find any merit in the present application. Hence the same is dismissed with costs which are - 15 - quantified at Rs.1500/- (Rupees one thousand five hundred only) in favour of respondent nos. 1 to 6 who have contested the application. 17. The application stands disposed of. A. P. Lavande, J. vn*