1 ca664.10 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 664 OF 2010 IN CIVIL REVISION APPLICATION ST. NO. 23007 OF 2010 M/s. Saia Builders. ....Applicant. Vs. Canara Bank ....Respondent. Mr. Jawahar Thakkar, Advocate for Applicant. Mr. Pandit i/b. Mr. S.K. Putharan, Advocate for Respondent. CORAM:- GIRISH GODBOLE, J DATED:- AUGUST 20, 2011 P.C. 1. Heard, the Advocate for the Applicant and Mr. Pandit, Advocate for the Respondent. Affidavit in reply has been filed by the Respondent. 2. Mr. Thakkar points out the various averments in the Civil Application and prays for condoning delay. Mr. Pandit vehemently opposed the Application on two grounds. First that the reason given essentially relates to the prolonged ailment of the wife of the Advocate of 2 ca664.10 the Applicant followed by her death and no reasons are given showing inability of the partners of the Applicant firm. Strong reliance has been placed on the Judgment of the Supreme Court in the case of Balwant Singh (Dead) vs. Jagdish Singh & ors. AIR 2010 SC 3043. It is vehemently contended that since cause shown is not sufficient cause, the Application should not be entertained. 3. The second submission is that no purpose would be served by condoning the delay in as much as no purpose would be served by entertaining the Civil Revision Application and in this regard reliance is placed on the averments in paragraph-6 of the Affidavit In Reply of the Respondent. 4. I have carefully considered the rival contentions and averments in the Civil Application and the Affidavit In Reply, as also the aforesaid Judgment of the Apex Court. 5. In my opinion, the second argument as to whether any purpose would be served by condoning the delay, based on paragraph-6 of the Affidavit In Reply and again pressed into service during the oral argument need not detain this Court for long. Whether CRA can be entertained on 3 ca664.10 merits or not, is not a matter which is required to be gone into at this stage while hearing Application for condonation of delay. By condoning delay, there is obviously no expression of opinion about the merits of the CRA and the Respondent, if it so desires, will always be free to oppose the CRA on the same grounds at the stage of admission or if admitted, at the stage of final hearing. 6. In so far as the first objection regarding sufficiency of cause and the reliance placed on the Judgment of the Apex Court is concerned, in my opinion, in the first place the said Judgment essentially deals with the provisions of Order 22 of the Code of Civil Procedure, 1908, which is not the case in hand. Mr. Pandit would however urge that the principles laid down in the said judgment must also be applied while considering any application under section 5 of the Indian Limitation Act 1963. Even if this submission is accepted for the time being, on the facts of the present case, the ratio in the said Judgment would not be applicable. The facts of the case before the Supreme Court have been noticed in paragraph-17 of the said Judgment. Contra-distinguished from the said facts, in the present case, the reasons indicated in paragraph-11 and 21 clearly show that there were sufficient grounds which have been elaborately explained. The fact 4 ca664.10 that the Advocate for the Applicant had undergone bypass surgery and that thereafter his wife was suffering from cancer, which ultimately laid to her death on 22nd June, 2010 is not seriously disputed. A litigant will obviously rely on his advocate and, the Advocate was facing the aforesaid difficulties during the relevant period and hence it cannot be said that either the Application is malafide or that the reasons for condonation are not sufficient. In fact, in the Judgment of the Apex Court, which is relied upon by the learned Advocate for the Respondent, the Apex Court has quoted with approval its earlier Judgment in the case of Perumon Bhagvathy Devaswom vs. Bhargavi Amma (2008) 8 SCC 321 and paragraph- 13(iv) of the said Judgment reads thus :- “13(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 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 re-filing the appeal after rectification of defects.” 7. Applying the aforesaid tests to the facts of this case, a case for condonation of delay is made out. The Civil Application is accordingly allowed in terms of prayer clause (a) only. Prayer clause (b) will be 5 ca664.10 considered at the time of hearing of CRA for admission. Place the CRA for admission as per CMIS. (GIRISH GODBOLE, J)