IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI Letters Patent Appeal no.01/2011 In Writ Petition No.355/2010 Mrs. Maria Cynthia D'Souza e Nogeira, Wife of the Respondent No.2, Residing at H.No.283, Handkant, Senaulim, Verna, Salcete, Goa. ….... Appellant V e r s u s 1. Mr. Joaquim Valadares, Major in age, service, Residing at Apartment No.3, Bank of India Staff Quarters, Sarkar Bandar Road, Margao, Goa.* 2. Mr. Marvyn Nogeira, Major in age, married, Service, C/o Near and Dear Restaurant, Bamborda, Verna, Salcete, Goa.* 3. Mrs. Agnes Nogueria, Major in age, married, Residing at c/o Dilip Nogeira, 16326, Barnestion Street, Granda Hills, California 91344, USA.* 4. The Administrative Tribunal of Goa, Dr. D. Vaidhya Hospital, IIIrd floor,.......(Deleted) Market, Panaji Goa.* …... Respondents Mr. S.D. Lotlikar, Senior Counsel with Mr. H. Kankonkar,Advocate for the Appellant. Mr. A.F. Diniz, Advocate for the Respondents. Coram: A. P. Lavande, J. & R.P. Sondurbaldota,J. Date: 3rd October, 2011. 2 ORAL ORDER (PER: R.P. SONDURBALDOTA,J) The appellant, respondent no.2, her husband and respondent no.3, her mother-in-law were defendants to the eviction suit filed by respondent no.1. The appellant and respondent no.2 had raised a plea of mundkarship which was referred to the Mamlatdar for his decision. The issue was decided against the appellant and respondent no.2 and their appeal to the Deputy Collector also failed. Thereafter, the appellant alone filed revision application to the Administrative Tribunal against the appellate order with an application for condonation of delay. The Tribunal dismissed the application for condonation of delay. The appellant then filed writ petition no.355/2010 in this Court to challenge the order of the Tribunal. The learned Single Judge dismissed the writ petition by the order dated 30/4/2010 which is impugned in the present Letter Patent Appeal. 2. In the meanwhile, the eviction suit of respondent no.1 came to be revived and decreed in favour of respondent no.1. An appeal preferred against the eviction decree was dismissed on 10/8/2009. Respondent no.1 thereafter on 6/1/2010 initiated execution proceedings which are pending. 3 3. The delay sought to be condoned by the appellant in filing revision application was of eight months and twenty four days. In her application for condonation of delay, she claimed that she was sick from 5/1/2008 to 22/12/2008 with “hypertension and cervical spondylosis” and she was advised strict bed rest and to avoid walking and travelling. The second ground set out in the application was that respondent no.3 left Goa and went to reside with another son abroad. Her husband, respondent no.2 who had been following up the Court proceedings had serious dispute with her and abandoned the conjugal domicile. Consequently, the appellant was left with the responsibility of looking after two minor children. Respondent no.1 contested the application contending that the grounds set out in the application cannot be said to be reasonable and sufficient for condonation of delay. 4. The Tribunal while dismissing the application for condonation of delay held that the medical certificate dated 22/12/2008 issued by one Dr. Uday Humraskar produced by the appellant was not issued for the purpose of producing it in the court and the same was issued to enable her to join duties. The certificate had not mentioned that the appellant was bed ridden during the period 4 of the alleged sickness. It noted that the permissible activity of the petitioner could not be ascertained on the basis of the medical certificate. As regards the abandonment by the husband, the Tribunal noted that respondent no.2 was served with the notice of the proceedings at the same address as the address of the appellant. Therefore, the contention that he had abandoned her from April 2008 could not be accepted. The learned Tribunal also took into account the simultaneous pendency of the civil litigation between the parties. It noted that the appellant and respondent nos.2 and 3 had sought several adjournments on one ground or the other in the eviction suit and that the evidence on their behalf was closed on 23/12/2008. Thus the record showed that the civil proceedings were followed by the appellant. 5. The learned Single Judge of this Court accepted the reasoning given by the Tribunal for rejecting the application for condonation of delay and dismissed the petition. In addition, he observed that both “hypertension and cervical spondylosis” are modern lifestyle ailments with which people carry out their day to day normal activities and that the medical certificate produced by the appellant was tailor made only to file application for condonation of 5 delay. The learned Single Judge futher took note of the fact that respondent no.2 had collected the certified copy of the order passed by the Deputy Collector on 28/3/2008 and that there was nothing to support the appellant’s plea that respondent no.2 had deserted her in April 2009. In fact, the service of notice upon respondent no.2 at the same address indicated to the contrary. The learned Single Judge also noted that the appellant had not conveniently set out the dates on which she and respondent no.2 had sought adjournments in the civil suit. 6. Mr. Lotlikar, the learned Senior Counsel for the appellant submits that it has been held by the Supreme Court in a catena of judgments that the Courts considering an application for condonation of delay must adopt a liberal approach and construe the term “sufficient cause” liberally, so that the cause of justice is advanced. He submits that it has been held time and again that the dispute between the parties should be resolved on merits and not disposed off on technicalities. Mr. Diniz, the learned counsel for respondent no.1 on the other hand reiterates the arguments advanced on behalf of respondent no.1 before the learned Single Judge as also the Tribunal. He also relies upon the decision of the Supreme Court in Balwant Singh (dead) Vs. Jagdish Singh and others,(2010) 8 Supreme Court 6 Cases 685, on interpretation of the term “sufficient cause” in Section 5 of the Limitation Act. The Apex Court has held that liberal construction of the expression “sufficient cause” is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant. The expression implies the presence of legal and adequate reasons. The word “sufficient” means adequate enough, as much as may be necessary to answer the purpose intended. It would be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. The Supreme Court then at paragraph 37 of its judgment reproduced the principles enunciated in its earlier decision in Perumon Bhagvathy Devasom V/s Bhargavi Amma. reported in (2008) 8 SCC 321. The same read as follows: "(i) The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory 7 tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view 8 applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal." 7. Coming to the facts of the present case the first cause set out by the appellant for condonation of delay is her sickness. She 9 claims that during the period 5/1/2008 to 22/12/2008, she was suffering from hypertension and cervical spondylosis. The certificate produced by the appellant is from a general practitioner and not from an orthopeadic surgeon. There is nothing to indicate in the certificate that the appellant had been advised complete bed rest and not to walk or travel. In that circumstance, we find that the observation of the learned Single Judge that both hypertension and cervical spondylosis are modern style ailments with which people carry on their day to day activities is quite appropriate. There is no material whatsoever produced on record by the appellant to show that she was absolutely bed ridden during the period. On the contrary, it is seen that there have been steps taken in the simultaneous civil proceedings. Therefore even on taking liberal view of the matter we find it difficult to hold that the health of the appellant prevented her from taking step of filing the revision application. 8. The second reason set out in the application is that during the same period, i.e. in April 2008 respondent no.2 deserted the petitioner leaving her with the responsibility of two minor children and also to look after the litigation in respect of the residential premises. Mr. Lotlikar implores us to consider the plight of the appellant with 10 responsibility of two minor children and the ailment of hypertension and cervical spondylosis. Significantly, the age of the two minor children has not been stated anywhere in the proceedings. Besides, there is also no material to indicate that respondent no.2 had in fact deserted her. He had been served with the notices in the suit and application filed at the very address, during the same period. This fact is not disputed by the appellant. Interestingly, though there are allegations made by the appellant against respondent nos.2 and 3 she has chosen not to serve the notice of the present appeal upon them. This specific request was made on 23/2/2011 on behalf of the appellant when notices were directed against the respondents. The order specifically records the request and issues notice only against respondent no.1. The impugned order notes that the appellant and other defendants to the suit had sought adjournments on one ground or the other and that their evidence was closed on 23/12/2008. This fact is now sought to be explained with an argument that the appellant was not personally present before the civil court on any date and that the application for adjournment by the lawyer should not come in the way of acceptance of the cause shown by the appelalnt as reasonable and sufficient. The fact that lawyer for the appellant had been representing her in the civil proceedings and seeking adjournments on 11 her behalf would indicate that the appellant was active in relation to the civil proceedings despite the ailment alleged. This would only mean that the ailment had not completely disabled the appellant to look after the court proceedings. 9. In the above circumstances, we find no infirmity whatsoever in the impugned order. It is neither illegal nor perverse. Hence, no interference with the same is warranted. The letter Patent appeal is, therefore dismissed. A. P. LAVANDE, J. R. P. SONDURBALDOTA,J AP/-