1 39 caf 4143.10 .doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4143 OF 2010 IN FIRST APPEAL (STAMP) NO.26922 OF 2010 M/s.Axis Builders Pvt. Ltd. ..Applicants. Vs. Bhagwanji S. Patel @ Valani ..Respondent. Mr. Rajesh N.Kachare for applicants. Mr. B.G.Vaidya for respondent. CORAM : K.K.TATED, J. DATED : 13/01/2011. PC: 1 Heard learned counsel for parties. 2 This civil application is preferred by original plaintiff for condonation of 5 years and 210 days delay in preferring appeal against the order dated 17th February, 2005 passed by the learned Judge of City Civil Court, Greater Bombay in Notice of Motion No.4998 of 2004 by which the appellants’ suit was dismissed under Order VII, rule 11 of the Civil Procedure Code, 1908. 3 The learned counsel appearing on behalf of applicants submits that they purchased the suit property from previous owner on 7th July, 1995. 2 39 caf 4143.10 .doc 4 The previous owner filed S.C. Suit No.464 of 1973 in the High Court of Judicature at Bombay, Ordinary Original Side Jurisdiction for recovery of possession of the suit premises and for arrears of rent and compensation from defendant in that suit. The said Suit No.464 of 1973 was decreed on 12th September, 1985. At the time of executing the said decree, the original owner learnt that some third parties were in possession. Therefore, they moved before the High Court, by way of Chamber Summons No.822 of 1988 for removal of obstruction caused by obstructionist nos.1 to 5 in that proceeding. The said Chamber Summons was dismissed on 11th July, 2006. 5 Thereafter, the applicant preferred Chamber Summons No.1814 of 2009 for joining them as parties in place of original plaintiff in Suit No.464 of 1973. On the date of hearing no one appeared on behalf of applicant and therefore, the said Chamber Summons was dismissed by an order dated 11th March, 2010. 6 The learned counsel appearing on behalf of applicants submits that as the applicants were proceeding in S.C. Suit No.464 of 1973 in High Court, so it remained on their part to take immediate steps to file present appeal in this court. He further submits that the delay occurred in prosecuting the other remedies, the delay of 5 years and 210 days is to be condoned. 3 39 caf 4143.10 .doc 7 The learned counsel appearing on behalf of respondents vehemently opposed the present civil application. They filed their affidavit-in-reply dated 23rd November, 2010. The learned counsel appearing on behalf of respondent state that the applicant has not shown sufficient cause for condonation of more than five years delay. He relies on Apex Court Judgment in the matter of P.K.Ramchandran Vs. State of Kerala, reported in 1997 DGLS (Soft.) 1198 and Balwant Singh vs. Jagdish Singh and others reported in 2010(6) All MR 480. 8 It is admitted fact that the respondent/original defendant preferred Notice of Motion No.4998 of 2004 in Small Cause Suit No.5336 of 2004 in Bombay City Civil Court under Order VII, Rule 11 of the Civil Procedure Code, 1908. After hearing both the sides the trial court passed impugned order dated 17th February, 2005 and rejected the plaint under Order VII, Rule 11 of the Civil Procedure Code, 1908. Thereafter, the applicant waited for the result of litigation in S.C. Suit No.464 of 1973 in High Court of Judicature at Bombay on Ordinary Original Side. This cannot be a ground for condonation of more than five years delay. In the matter of P.K.Ramchandran (supra) and Balwant Singh (Dead) (supra), the Apex Court categorically held for condonation of delay the applicant must show sufficient cause. 4 39 caf 4143.10 .doc In the present case, applicant failed to show sufficient cause for condonation of delay. 9 A perusal of the application does not reveal any diligence on the part of the Applicant in the conduct of the proceedings. When already the suit has been rejected under Order VII, Rule 11 of Civil Procedure Code, the applicant ought to have been more careful and diligent in prosecuting the matter further. The conduct of the Applicant clearly reveals that at no point of time, they realised their responsibility as a litigant. 10 The expiration of the period of limitation prescribed for making an appeal, gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. 11 Considering the above facts and circumstances, I do not find any substance in the present application and the same is rejected. 12 No order as to costs. (K.K.Tated, J.)