1 caf4539-10.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4539 OF 2010 IN FIRST APPEAL ST. NO.30241 OF 2010 Bhagwan Shankar Gadhade and Anr. .. Applicants Vs. Vimal Vinayak Gadhade and Ors. .. Respondents Mr.Kapil Prakash Shetye for the applicants Mr.S.S.Redekar for respondent no.1 CORAM: K.K. TATED, J. DATE: 15th DECEMBER, 2011 PC: 1. Heard the learned counsel for the parties. Though respondent nos.2 and 3 are served, no one appeared on behalf of them when the matter was called out for hearing. 2. This application is preferred by original plaintiffs for condonation of 189 days delay in preferring the appeal against the judgment and decree dated 29.4.2010 passed by City Civil Court in S.C. Suit No.5499 of 2006. The learned counsel appearing on behalf of the applicants submits that because of financial difficulties in the 2 caf4539-10.doc relevant period, it remained on the part of the applicants to prefer the appeal within time. He further submits that the settlement talks were going on and that they wanted to settle the matter out of court, therefore, there is a delay in preferring the appeal.. 3. On the other hand, the learned counsel for respondent no.1 vehemently opposed the present application. They filed their affidavit in reply dt.29.11.2011. The learned counsel appearing on behalf of respondent no.1 submits that the applicants are in service and they are getting good salary. Therefore, there is no question of any financial difficulties on their part. He further submits that respondent no.1 never offered any settlement to the applicant. Both these grounds are false. He further submits that the applicants have not disclosed any sufficient cause for condonation of delay in preferring the appeal against the impugned judgment and decree passed by City Civil Court. Therefore, there is no substance in the application. Civil Application is liable to be dismissed. 4. In the present case, the Trial Court has passed judgment and decree dated 29.4.2010. Applicants applied for certified copy of the same on 5.5.2010 and same was ready for delivery on 10.5.2010. The present appeal was filed by original plaintiff on 22.11.2010. It is admitted fact that the applicants have not produced any documentary 3 caf4539-10.doc evidence on record to show that they were in financial difficulties and or settlement talks were going on. However, considering the facts of the present case, I find that there is sufficient cause for condonation of delay and hence, the delay needs to be condoned. 5. It is to be noted that the Apex Court in the matter of N.Balakrishnan vs. M.Krishnamurthy reported in (1998) 7 Supreme Court Cases 123 held that the object of fixing time limit is not meant to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. Paras 11, 12 and 13 of that authority reads thus: “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. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the 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 4 caf4539-10.doc Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights 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 in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 ofthe Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 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 5 caf4539-10.doc 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.” 5. Considering these facts, Civil Application is allowed in terms of prayer clause (a) with costs of Rs.1500/-. Cost to be paid to the respondent no.1 within two weeks from today. Prayer clause (a) of the Civil Application reads as under: “(a) that the delay of 189 days in filing of the present First Appeal may be condoned.” 6. Civil Application is disposed of accordingly. (K.K.TATED,J.)