1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4436 OF 2009 Sanjay s/o Ganpat Ghodke, Age: 47 years, Occ: Labour, R/o. Sadegaon, Tq.Parbhani, Dist. Parbhani. .. Petitioner Versus Kazi Md. Rashidoddin s/o Muzafaroddin, Age: 67 years, Occ: Pensioner & Agri., R/o. Mangalwara, Parbhani, & Ors. .. Respondents ... Mr. A.S. Deshmukh, Advocate for petitioner. Mr. S.V. Gangapurwala, Advocate for Respondent Nos.1 & 2. Mr. S.V. Chandole, Advocate for Respondent Nos. 3 to 5 & 7. ... CORAM : K.K. TATED, J. DATE : 1ST OCTOBER, 2009. PER COURT : 1. Heard learned Counsel for the petitioner and learned Counsel for the respondents. 2 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner- original defendant No. 4 challenges the order dated 14-01-2009 passed by the District Judge-3, Parbhani in M.C.A. No. 94/2008 rejecting petitioner's application for condonation of delay in preferring application for restoration of appeal. Petitioner and respondent Nos. 3 to 7 preferred appeal against the interlocutory order under Order 43 of the Code of Civil Procedure. Same came to be dismissed on 23-04-2008 for non removable of office objections as per Civil Manual. Thereafter petitioner and respondent Nos. 3 to 7 preferred application for restoration of appeal on 17-06-2008. There was delay in filing the said application. Reasons given by petitioner in said application for delay that respondent No. 3 original applicant No. 1 in that application for condonation of delay was hospitalized during that period. Learned District Judge-3 Parbhani held that the 3 petitioner has not filed affidavit in support of the said application and failed to disclosed cogent reason for delay. 3. Learned Counsel appearing on behalf of the respondents vehemently opposed the application on the ground that though delay is only of 8 days, the petitioner failed to explain the same by filing affidavit in support of his application. In any case, petitioner and respondent Nos. 3 to 7 in their application dated 17-06-2008 specifically stated in Para 3 that respondent No. 3 was hospitalized and therefore, it remained on their part to take appropriate steps immediately. Apex Court in the matter of N. Balkrishnana vs. M. Krishnamurthy reported in (1998) 7 SCC 123 held that in absence of anything showing malafide or deliberate delay as a dilatory tactic, Court should normally condone the delay. Para.11,12 and 13 read as under. 4 "11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life- span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always 5 deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to 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 should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet 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." 4. Considering explanation given in 6 application dated 17-06-2008, the order passed by the District Judge-3 Parbhani dated 14-01-2009 is set aside. The application filed by the petitioner and respondent Nos. 3 to 7 for condonation of delay is allowed. The trial Court is directed to hear the application filed by the petitioner and respondent Nos. 3 to 7 for restoration of appeal on its own merits. 5. With this direction, Writ Petition is partly allowed. [ K.K. TATED, J.] sut/OCT09/wp4436.09