gst 1 cas1351.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. CIVIL APPLICATION NO. 1351 OF 2009 IN SECOND APPEALNO. 563 OF 1992. Ramchandra T. Kasbe d/h & Ors. .... .... ..Applicants. V/s Kashinath R. Kasbe & Ors. ... .... ..Respondents. Mr.M.M.Sathaye, Adv. For the applicants. Mr.R.M.Agarwal, Adv. For respondent No.3. CORAM: B.R.GAVAI, J. 8th September, 2010. PC: This is an application for condonation of delay in filing cross objections. Delay is about 16 years. 2. Mr.Sathaye, learned counsel appearing on behalf of the applicants submits that delay has occasioned since the earlier counsel had not advised the applicants to file cross objections. He submits that the counsel was changed in August, 2009 and immediately cross objections have been filed. He further submits that the right, which the applicants have in view of section 12 of Specific Relief Act, would be taken away if cross objection is not allowed. He further submits that decree which is impugned, is also not executable in view of the provisions of Limitation Act. Learned counsel therefore submits that, it is necessary, to consider the merits of the matter, while considering aspect of condonation of delay. 3. Learned counsel relies upon a judgment of the Rajasthan High Court reported in the case of Urban Improvement Trust Vs. Poonam Chand, AIR 1997 Raj. 134 in support of the proposition that the merits of the matter are required to be looked into while considering the application for condonation of gst 2 cas1351.09.sxw delay. 4. He further relies on a judgment of the Apex Court in the case of Ram Nath Sao @ Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors., AIR 2002 SC 1201 in support of the proposition that the rules of procedure could not come in the way of substantial justice and valuable right of the party to have the decision on merit, should not be taken away by hyper-technical ground. He further relies on a judgment of the Apex Court in the case of The State of WB Vs. The Administrator, AIR 1972 SC 749 in support of the proposition that the expression “sufficient cause” has to be considered liberally. Learned counsel further relies on a judgment of the Apex Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst.Katiji & Ors., AIR 1987 SC 1353 in support of the proposition that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. 5. Mr.Girish Agarwal, learned counsel appearing on behalf of the respondent, on the contrary submits that merits of the matter cannot be looked into at the stage of condonation of delay. He relies on a judgment of Full Bench of Gujarat High Court reported in the case of Municiipal Corpn. Of Ahmedabad Vs. Voltas Ltd. , AIR 1995 Guj. 29 and of the Single Judge of this Court in the case of Madhao s/o Somaji Sarode Vs. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala, 2004 (3) Mh. L.J. 1078. He also relies on a judgment of the Apex Court in the case of G. Ramegowda, Major Vs. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 in support of the proposition that negligence on the part of lawyer cannot be a ground for condoning delay in every case. 6. No doubt that Mr.Sathaye, learned counsel, is right in relying upon a judgment of Rajasthan High Court in the case of Urban Improvement Trust (supra) wherein the learned Single Judge of Rajasthan High Court, has held that while considering the application for condonation of delay, merits of the matter gst 3 cas1351.09.sxw are also required to be taken into consideration. However, the said judgment is of Rajasthan High Court, would only have persuasive value and would not be binding on this Court. For the reasons to follow I am not inclined to accept the view taken by the Rajasthan High Court. While deciding the writ petition in the case of Madhao (supra) I have taken a view that it is not permissible for the Courts to consider merits of the matter while considering the application for condonation of delay. It has been further held that unless the delay is condoned Courts do not have jurisdiction to entertain the merits of the matter. 7. In so far as the judgment of the Apex Court relied upon by learned counsel for the applicant in the case of Ramnath Sao (supra) is concerned, the Apex Court was considering the application for condonation of delay, in setting aside the abatement. In the peculiar facts and circumstances of the case, when it was found that the appellants were farmers and illiterate villagers who belonged to different families of different villages, situated in the jurisdiction of different police stations and when there was nothing to establish that the delay was malafide, intentional or any dilatory tactics adopted, has been held that the delay was liable to be condoned and abatement of the appellant was set aside. Such is not the case here. All the applicants are closely related to each other residing in the same village. In any case, the case before the Apex Court was regarding condonation of delay in setting aside the abatement. In the present case, the decree has been passed by the Appellate Court in favour of the appellant with regard to 1/5th share. The trial Court had decreed the suit for entire property. As such in so far as 1/5th share is concerned valuable right has accrued in favour of the appellant. 8. No doubt, the reliance placed by learned counsel for the appellant on the judgment of the Apex Court in the case of The State of WB (supra) and in the case of Collector, Land Acquisition, Anantnag (supra) is well placed, in so far as it holds that, while considering the application for condonation of delay and while construing the term “sufficient cause”, the Courts are required to take gst 4 cas1351.09.sxw pragmatic view and not pedantic view. However, at the same time it will have to be considered that, while taking away valuable right, accrued in favour of a party, other side must show sufficient cause. While considering as to whether the cause shown is sufficient or not the Court would take liberal or pragmatic view. However liberal approach or pragmatic approach cannot be stretched to condone the delay of more than 16 years and only on the ground that earlier lawyer had not advised the applicants properly. In this respect a reference to the judgment of the Apex Court in the case of G. Ramegowda (supra) would be useful, wherein the Apex Court has held that if there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or it counsel, there is no reason why the opposite side should be exposed to a time-barred appeal. 9. In that view of the matter application stands rejected. In view of rejection of civil application No.1351 of 2009, Civil Application No.1350 of 2009 does not survive and the same also stands disposed of.