(1) SA. 896.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 896 OF 2008 City and Industrial Development Corporation of Maharashtra, Through it’s Administrator, CIDCO, Aurangabad .. Appellant VERSUS Smt. Sushilabai w/o Kishanrao Khatri, Age : 65 years, Occu.: Household, R/o Dalalawadi, Aurangabad, Now residing at Arihant Nagar, C-3, Aurangabad .. Respondent WITH CIVIL APPLICATION NO. 2287 OF 2009 IN SECOND APPEAL NO. 896 OF 2008 City and Industrial Development Corporation of Maharashtra, Aurangabad .. Applicant VERSUS Smt. Sushilabai w/o Kishanrao Khatri .. Respondent AND CIVIL APPLICATION NO. 13135 OF 2008 IN SECOND APPEAL NO. 896 OF 2008 City and Industrial Development Corporation of Maharashtra, Aurangabad .. Applicant VERSUS Smt. Sushilabai w/o Kishanrao Khatri .. Respondent (2) SA. 896.2008 Mr. P.M. Shah, Advocate h/f. Mr. A.S. Bajaj, Advocate for the appellant-applicant Mr. Vinod I. Thole, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 4TH SEPTEMBER, 2009 ORAL ORDER:- 1] This appeal challenges the order passed by the learned District Judge-5, Aurangabad who rejected the appellant’s application for condonation of delay in filing of the First Appeal. 2] The factual background is as under:- . The respondent filed the suit for declaration and injunction in respect of certain piece of land admeasuring 20 guntha. She stated that the land was part of survey no. 197 of village Harsool and that she had purchased it and that the appellant was attempting to interfere in her possession. The appellant Corporation caused their appearance and filed written statement. They took up various defences including the maintainability of the suit. Their defence essentially was that the suit land was also part of large pieces of land acquired by the Government for them. The appellant was developing a new city at Aurangabad. The appellant then filed various documents before the trial Court. The trial Court, thereafter framed issues and then recorded (3) SA. 896.2008 evidence of the respondent-plaintiff. The trial Court did not get any co-operation from the appellant or their Advocates. The suit practically went undefended. The suit was decreed on 28.6.1989. The appellant did not file appeal against the judgment and decree despite of their strong initial resistance. In 2001, the respondent started execution of the decree. The appellant appeared through their Advocates and opposed the execution. In 2007, the appellant filed a Writ Petition challenging the legality of the impugned decree. The Division Bench of this Court rejected the Writ Petition, advising them either to resist the execution of the decree or to file first appeal against the impugned judgment and decree, whichever was advisable. Thereafter, the appellant filed the first appeal with application, seeking condonation of delay. The application was rejected. This appeal was filed, challenging the said order. 3] The question is whether, the appellant made out a case for condonation of delay. The answer is in the negative. 4] The appellant, stated in the application that the delay is only of 1 year and 7 months but this assessment of the period of delay, is a grossly incorrect. If the impugned decree was passed in June, 1989 the period of limitation would start (4) SA. 896.2008 running and it would continue till the appeal was filed in 2008. Delay, thus apparently is of 19 years. 5] The appellant relied upon two paragraphs in their application for showing sufficient cause for condonation of delay. It is better if I quote the relevant portion of the application verbatim. "4. Applicant fairly submits that, it's Office came to know about the Judgment and Decree in 2001, in pursuance to notices in execution petition. And applicant/appellant had filed its objections to execution petition. However, there was some what confusion in the office of appellant and Original Old Record of acquisition, relating to suit land was not accessible/traceable, therefore, caused the delay. After tracing out the old Original record, immediately, Writ Petition no. 3906 of 2007 was filed before the Hon'ble High Court, in 2007, with 'Bonafide Belief' that since decree under challenge is void-ab- initio, under extra ordinary jurisdiction Hon'ble Court may quash and set aside the same. 5. Since the suit property was open plot, all the while CIDCO authorities carried an impression that said plot is in peaceful possession of CIDCO Authority. There was no palpable attempt to disturb the physical possession of CIDCO authority relating to the said property. From time to time, the Officers were transferred. The staff was also transferred. There was nothing on the face of record, which would cause any suspicion or which would cause any alarm (5) SA. 896.2008 that CIDCO is excluded from the possession and enjoyment of such a small fragment admeasuring 20 Guntha(s) of land out of huge track of notified area. The decree, it appears, remained on some dormant file. The entries in revenue record also evidence the name of Suyog Housing only and that of the plaintiff." 6] On the face of it, the explanation offered in the foregoing paragraphs, would not amount to sufficient cause. Assuming for the sake of argument and giving latitude to the appellant that the officers of the appellant, simply forgot about the passing of the decree in June 1989, and they learnt about it only in 2001, the question still is what did they do about it then? It is obvious and clear from the explanation that they did not think of filing an appeal against the impugned judgment and decree. They preferred to oppose the execution. The explanation that they could not lay their hand on the original record of acquisition, and so they did not file appeal, is virtually a false statement. Had they really meant to file appeal against the judgment and decree, they could have simply sought a certified copy of the entire proceedings of the civil suit. They could have even taken inspection of the R & P of the civil suit. They would have then learnt as to what defence they had taken in their written statement and they would have also learnt as to how the impugned judgment and decree (6) SA. 896.2008 was incorrect. So, the appellant’s Officers cannot blame the traceability of the old record of acquisition in their office. Even filing of the Writ petition in 2007 was grossly and unpardonably delayed. The appellant did not offer any explanation, as to why instead of filing of the Writ Petition they did not filed the first appeal. . The explanation in paragraph no.5 quoted above, is probably the real cause why the appeal was not filed till 2008. The appellant conceded to the fact that since they were in possession of the large tracts of land, they did not get alarm from the impugned decree which was in respect of a small fragment. This clearly amounts to admission as to why the Officers of the appellant were simply ignoring the existence of the decree. This admission, shows that it was not only the officers were negligent but there is ample scope for assumption that even the Legal Advisors of the appellant were also negligent in giving advise to them on this issue. 7] The learned senior counsel Shri P.M.Shah for the appellant argued that the Court should also see the propriety and legality of the impugned order. He tried to argue that the impugned order was bad for lack of inherent jurisdiction. He said the learned Civil Judge could not have decided the suit in absence of the State, who had by then became (7) SA. 896.2008 owner of the property etc. He referred to several other factual aspects of the case for criticizing the correctness of the decree. . I am afraid such defects in the impugned judgment and decree can not be gone into at this stage while deciding the application for condonation of delay. 8] The learned Advocate appearing for the respondent rightly placed reliance on the recent judgment of the Supreme Court in the case of Commissioner, Nagar Parishad Bhilwara Vs. Labour Court, Bhilwara and anr. Reported in 2009(2) All M.R. 429. The Supreme Court reiterated in this judgment that the Court deciding the application for condonation of delay, should only consider whether sufficient cause has been shown for condoning the delay. The Court should not enter into the merits of the case. 9] Mr. Shah, then invited my attention to the judgments of the Supreme Court in the case of N. Balakrishnan V. M. Krishnamurthy reported in (1998) 7 Supreme Court Cases 123. Through this judgment, the Supreme Court indicated the guidelines on which the application for condonation of delay is required to be decided. The Supreme Court said that the discretion given to the Court while deciding such application under section 5 of the Limitation Act, (8) SA. 896.2008 should be used while interpreting words “sufficient cause” used in the section. It held that acceptability of the explanation for the delay is the sole criterion and the length of delay is not relevant in all cases. The Supreme Court, however, indicated that while examining the case, the Court should see whether the application suffers from malafide and whether the application is part of a dilatory strategy to deliberately gain time. . In this case, though there is no malafide seen on the part of the appellant, but the gross negligence on the part of their officers and Legal Advisors is sought to be swept under carpet. The appellant is trying to create a picture that since they are a public authority and since they are trying to protect the interest of the public, such negligence should be condoned. The justification of negligence, as said above, is not acceptable. The second question is whether the appellant’s application is a part of dilatory strategy for deliberately seeking time? In this regard, I am inclined to hold against the appellant. I have discussed the facts above. Despite of opportunities for filing appeal, the appellant avoided to do so. It first opposed the Execution Petition. Then it filed the Writ Petition and now, they are before the appellate Court. The stages, through which they took the litigation, certainly amounted to dilatory tactics. During the last 20 years, or so, the (9) SA. 896.2008 appellant could successfully thwart the respondent's meaningful enjoyment of the suit plot of land. Besides, the main thrust of this judgment (Balakrishnan’s case) is that the Court should essentially examine the explanation offered for seeking condonation of delay and to give it’s finding, as to whether it amounted to sufficient cause. This exercise is essentially appreciation of the facts put forward by the appellant. I have already held above that the facts mentioned in the application are not convincing and so, the rejection of their application seeking delay, deserves to be upheld. 10] The Second Appeal stands dismissed. In view of the dismissal of the Second Appeal, nothing survives in Civil Application nos. 2287 of 2009 and 13135 of 2008 pending in this Second Appeal. Both the Civil Applications also stand dismissed. Ad- interim relief granted earlier to stand vacated. Sd/- (A.V. NIRGUDE, J.) arp