( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2418 OF 2008 Shri Ramdas Dattatraya Kate, R/o Vijay Nagar, Alamgir, Plot No. 10,Bhingar, Ahmednagar. PETITIONER VERSUS 1. Shri Namdeo Dattu Kate, R/o H.No. 63, Waghaskar Galli, Bhingar, Ahmednagar. 2. Shri Asaram Dattatraya Kate, R/o H.No. 63, Waghaskar Galli, Bhingar, Ahmednagar. 3. Deubai w/o Dattu Kate Since deceased, by L.Rs. 3A. Namdeo Dattatraya Kate 3B. Ramdas Dattatraya Kate 3C. Asaram Dattatraya Kate 3D. Narayan Dattatraya Kate 3E. Sopan Dattatraya Kate 4. Shri Narayan Dattu Kate, Respondents No. 3A to 3E and No. 4 r/o Vishrantwadi, Bhairavnagar, Dhanori Road, Pune. 5. Shri Sopan Dattu Kate, R/o Theragaon, Behind Mahadeo Mandir, Pune. RESPONDENTS ..... Mr. R.K. Temkar, advocate for the petitioner. Mr. V.P. Latange, advocate for respondent No. 1. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th July, 2009] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally by the consent of the learned counsel for the parties. 2. By this petition, the petitioner impugns order passed by the learned Adhoc District Judge, Ahmednagar on delay condonation application (Exh-25) in Misc. Application No. 143/2005. The respondent No. 1 filed an appeal against judgement and decree rendered in suit for partition and separate possession (R.C.S. No. 48/1986). His appeal was registered as Regular Civil Appeal No. 134/1992. He is the original plaintiff of the partition suit and was aggrieved by the judgement and decree rendered in the suit. The appeal was enlisted on board of 18-06-1998 for compliance of the directions as per order dated 21-07-1993 passed by the District Judge for taking appropriate steps against the respondents No. 4 ( 3 ) and 5 who were unserved. The learned advocate appearing for the respondent No.1/appellant failed to take steps on the given date nor presented himself before the Court on the said date. The learned District Judge, therefore, dismissed the appeal due to non-compliance of the order dated 21-07-1993. This order of dismissal of the appeal was sought to be recalled and restoration of appeal was prayed for by filing restoration application on 13-07-2005 alongwith delay condonation application (Exh-25). The application for condonation of delay of 2557 days came to be allowed by the impugned order of the learned Adhoc District Judge. 3. The explanation given by the respondent No. 1 in his application is that he was not feeling well due to paralysis and some mental disorder before 11-06-1998 and, therefore, could not attend the Court on that date. He asserted that he lateron was cured to some extent and, therefore, approached his advocate. He further submitted that his advocate was unable to attend the Court because of engagement in another Court when the appeal was called out and dismissed in default. He ( 4 ) asserted that the delay was caused due to reasons which were sufficient and there was no negligence on his part. He urged, therefore, to condone the delay. 4. The application was resisted by the petitioner, who was respondent No. 1 in the said proceedings, on the ground that the explanation is totally dis-satisfactory and inadequate. The petitioner submitted that there was no sufficient cause for the respondent No. 1 to remain absent on the scheduled date nor any sufficient reason was ascribed by him for committing such a long delay in filing the restoration application. By the impugned order, the learned Adhoc District Judge was pleased to condone the delay. 5. Heard learned counsel. 6. Question of significance involved in this petition is whether the delay condonation of excessive nature i.e. Of more than five (5) years could be ordered though no tangible reason for such gross delay was ascribed by the respondent No. 1. ( 5 ) 7. There cannot be any duality of opinion about discretion available to the Court to condone the delay, may of several years, in case there is real justification shown within the ambit of section 5 of the Limitation Act. The Court cannot, however, grant such application when the reasons stated by the applicant are not at all sufficient and proper. The discretion of the Court must be exercised judiciously. Though liberal approach is expected in such matters, yet, the Court cannot order condonation of the delay so as to make section 5 of the Limitation Act nugatory or just like a inactive provision in the Statute book. The condonation of delay ought to be done on furnishing of “sufficient cause” and not on basis of flimsy grounds. 8. Keeping the above legal position at back of the mind, I shall now consider what kind of explanation was furnished by the respondent No.1 in his application (Exh-25). He alleged that on 11-06-1998, the learned advocate appearing for him was engaged in another Court and, therefore, could not attend the matter. The ( 6 ) respondent No. 1 never stated that he and the learned advocate had no knowledge about the date fixed for compliance of the directions given by the Court on 21-07-1993. It follows, therefore, that there was knowledge to his advocate about the directions of the Court to comply with the order dated 21-07-1993. The advocate of the respondent No. 1 did not take immediate steps for recalling of the order of dismissal. He could have appeared in the Court on the same day after some time of dismissal or could have moved the Court on next day or within a reasonable period. That was not done. Nor the affidavit of the concerned advocate was filed on record so as to explain as to why no steps were taken by him immediately to request the learned Presiding Officer to call back the order of dismissal. 9. Another reason stated in the application of the respondent No. 1 was that prior to 11-06-1998, he was not feeling well due to paralysis and due to mental disorder. He stated further after he had been cured to some extent, he immediately approached the advocate in order to file application for certified copy. ( 7 ) Thereafter, the application for condonation of delay and restoration of the appeal came to be filed. It is worthwhile to note that no-where in his application, it has been stated that he was suffering from hypertension and abdominal distress during the relevant period or any part of the relevant period of five (5) years in between the date of dismissal of his appeal and the date of filing of the restoration application. He, however, filed a medical certificate (Exh-20) issued by a private medical practitioner. The private medical practitioner, namely, PW Dr. Chopda stated before the learned Adhoc District Judge that the respondent No. 1 was suffering from blood pressure between 1995 to 1999. The medical practitioner did not say a word about so called illness of paralysis or mental disorder of the respondent No.1. Thus, the medical evidence of PW Dr. Chopda has absolutely no relevance to the cause shown in the application. That apart, even assuming that version of PW Dr. Chopda may be taken into consideration in order to justify the delay, then also his version could be relevant to the extent of explaining delay upto the year 1999. What happened between 1999 to 2005 is rather not ( 8 ) at all explained by the respondent No. 1 and this important aspect is completely overlooked by the learned Adhoc District Judge. 10. The learned Adhoc District Judge was much impressed by the fact that the original respondents No. 4 and 5 gave no objection to condone the delay. Their no objection cannot be the reason to condone the delay when the petitioners strongly opposed the application. The learned Adhoc District Judge observed that the appeal could not have been dismissed because it was not fixed for hearing. He observed that the dismissal of the appeal was not covered by the provisions of Order-XLI Rule-18A of the Civil Procedure Code. He held that Rule-18A of Order-XLI is not applicable in the matter. The relevant observations of the learned Adhoc District Judge may be quoted as below : “In fact, Court cannot dismiss appeal whenever it is not fixed for hearing, by which the provision of Order XLI Rule 18A of the Code of Civil Procedure is not applicable in this matter. There is no other provision in the ( 9 ) Order XLI of the Code of Civil Procedure that Court is given power to dismiss the appeal for want of prosecution. Whenever appeal is dismissed under Rule 17 of Order XLI of the Code of Civil Procedure, the appellant may apply to the Appellate Court for the re- admission of the said appeal as per the provisions of Order XLI Rule 19 of the Code of Civil Procedure by satisfying the Court that really he was having sufficient cause for not attending the Court on the date by which his appeal has been dismissed by Appellate Court.” 11. The relevant provision of Order-XLI Rule-18A of the Code of Civil Procedure as applicable vide Bombay Amendment, reads as follows : “18-A. Dismissal for want of prosecution. - Where after the admission of an appeal the rules or the special directions of the Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rules or allowed by the Court, the Court may direct the appeal to be dismissed for want of ( 10 ) prosecution or may pass such other order as it thinks fit.” A plain reading of Rule-18A would make it amply clear that the Court has power to dismiss the appeal for want of prosecution wherever there is non-compliance of the directions given by the Court. This discretion of the Court that instead of passing order of dismissal, the Court may pass any other order which is found to be suitable. Thus, the Court may suo moto give one more chance or may impose cost or may pass conditional order of dismissal as the case may be. In the present case, the learned District Judge was pleased to dismiss the appeal for want of prosecution. Therefore, the present case is covered by the provisions of Order-XLI Rule-18A of the Code of Civil Procedure and there is no merit in the view taken by the learned Adhoc District Judge that the Court cannot dismiss the appeal if it is not fixed for final hearing. Here, the learned Adhoc District Judge seems to have committed patent error and has expressed rather perverse view regarding interpretation of Rule-18A of Order-XLI of the Code of Civil Procedure. ( 11 ) 12. On perusal of the application submitted by the respondent No.1 and the nature of explanation given by him, it is difficult to say that there was any sufficient cause shown by him for the purpose of condonation of delay. The reasons stated by the respondent No. 1 are only flimsy and casually, he sought condonation of delay which was of more than five (5) years. The learned Adhoc District Judge condoned the delay without adhering to the mandate of the law under section 5 of the Limitation Act to examine whether the reasons could be regarded as “sufficient” for the purpose of condonation of such delay of more than five (5) years. The principle “vigilantibus et non dormientibus jura subveniunt” (the law does not help one who sleeps over his rights) is applicable to the facts of the present case. The respondent No. 1 was negligent throughout the relevant period and that his advocate also did not take care to move the District Court for recalling of the order of dismissal within a reasonable time-frame. The granting of such kind of application by the Court would amount to giving of premium over ( 12 ) negligence of a party. 13. Considering the foregoing reasons and the legal position stated hereinabove, I have no hesitation in holding that the impugned order is quite arbitrary and perverse. Therefore, the petition succeeds. The petition is allowed. The impugned order is quashed. Rule is made absolute. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP2418-08