... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. MISC. CIVIL APPLICATION NO.241/2007 Smt. Sunandabai Yellurkar and 3 ors. ... Applicants v e r s u s Confraria de N.S. Das Merces of the Chapel of Vadem, Vasco-da-Gama, Goa and anr. ... Respondents Mr. V. A. Lawande, Advocate for the Applicants. Mr. M. Fernandes, Advocate for the respondents. CORAM: C. L. PANGARKAR, J. DATE : 6TH JANUARY, 2009. P.C.: This is an application for condonation of ... 2 ... delay in preferring Second Appeal. The applicants make an averment in the pleadings that the judgment was delivered by the District Judge on 23.02.2006, certified copy was applied on 27.02.2006 and the copy was delivered on 09.03.2006. There is a delay of 168 days in preferring the appeal. It is stated in the application that the appeal was preferred by the present applicant as well as her son who is now respondent no.2 before the District Judge. It is also stated that the respondent no.2 who was then the appellant in the appeal before the District Court was taking care of the litigation before the District Court and the present applicant was not aware of the proceedings. It is her contention that she came to know about the decision of the Court when she received a letter from her counsel on 20.10.2006. It is further stated that thereafter she contacted her counsel. There is no delay on the part of the ... 3 ... applicants. It is her contention that her son is living seperately since the time he is married on 10.07.2005 and there was no contact between her son and her. 2. The application is opposed by the respondents. The respondents deny all the allegations made in the application as there is no sufficient cause for condoning the delay. The respondents also deny that the respondent no.2 is living separately and that he did not inform his mother about the decision of the Court. 3. I have heard the counsel for the parties. The counsel for the respondents submits that the reasons given in the application are not convincing and bonafide. According to the respondents, the statement on oath that the respondent no.2 is still ... 4 ... living with the applicants and that she is not aware of the decision of the District Judge is totally false. He also contended that the rejoinder has been filed by the respondents that respondent no.2 is still living with his mother. In rejoinder affidavit it is clearly stated that the respondent no.2 is living in Ponda and not living with his mother. The applicant claims knowledge from the letter received from her counsel was received by her on 26.10.2006. This letter was issued by the learned counsel to the party that they should collect the papers. There is no reason for the then learned counsel to send unnecessarily the said letter. The fact that the learned counsel sent the letter clearly shows that he had thought it necessary to inform her to collect the papers. I do not find any reason to reject the contention of the applicants that the said letter was received on 26.10.2006. It must be said that the ... 5 ... applicant is not going to gain anything by filing an appeal late. There was no reason for her to file an appeal late and run the risk of rejection of the appeal. The Court must decide the dispute on its merits. The Supreme Court in the decision reported in N. Balakrishnan v. M. Krishnamurthy reported in 1998 SCC (7) 123 has observed as follows: “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 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal ... 6 ... v. The Administrator, Howrah Municipality, AIR 1972 SC 749. 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 Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the ... 7 ... applicant the Court shall compensate the opposite party for his loss.” 4. In view of what has been stated by the Supreme Court, delay in preferring appeal stands condoned on payment of costs of Rs.500/- to the respondent no.1. C. L. PANGARKAR, J. lh/.