1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6786 OF 2009 Jatrya s/o Nandlya Gavit, Age: 80 years, Occ: Agri., R/o. Dhanrath, Tq. Navapur, District Nandurbar. .. Petitioner Versus Smt. Jayayta w/o Segji Gavit, Age about 72 years, Occ: Agril., R/o. Dhanrath, Tq. Navapur, District Nandurbar & Ors. .. Respondents ... Mr. D.S. Raut, Advocate for petitioner. ... CORAM : K.K. TATED, J. DATE : 9TH OCTOBER, 2009. PER COURT : 1. Heard learned Counsel for the petitioner. 2. Present Writ Petition is filed by original defendant under Articles 226 and 227 of the Constitution of India, challenging the order 2 dated 02-04-2009 passed by the Civil Judge, Junior Division, Nawapur District Nandurbar below Exhibit-21 and 22 in R.C.S. No. 22/2003 allowing respondent No.2A and 2B's application for bringing legal heirs on record of deceased respondent No.2. Respondent No.1 and deceased respondent No.2 filed R.C.S. No. 22/2003 in the Court of Civil Judge, J.D. Nawapur for declaration of ownership in respect of agricultural land admeasuring 3 Hector 23 Ares from Gat No. 183 situated at Dhulipada, Taluka Nawapur District Nandurbar. Original plaintiff No. 2 expired on 05-12-2005. Thereafter the petitioner-original defendant filed application dated 13-01-2006, placing on record that original plaintiff No. 2 expired on 05-12-2005. Thereafter, the legal heirs of original plaintiff No. 2 filed their application dated 19-01-2007 for bringing legal heirs on record of deceased original plaintiff No.2. Alongwith the said application,legal heirs of original plaintiff No. 2 also filed application dated 3 19-01-2007 under Section 5 of the Limitation Act for condonation of one years delay. Both the applications for bringing legal heirs on record as well as for condonation of delay allowed by the trial Court. 3. Learned Counsel appearing on behalf of the petitioner - original defendant vehemently argued that in spite of knowledge about the death of original plaintiff No. 2, original plaintiff No. 1 failed to take out appropriate application immediately for bringing legal heirs on record of deceased original plaintiff No. 2. He further submitted that respondents failed to make out a case for condonation of inordinate delay of one year in preferring application for bringing legal heirs on record. On the basis of these submissions, learned Counsel appearing on behalf of the petitioner stated that the impugned order dated 02-04-2009 passed by the Civil Judge, J.D. Nawapur in R.C.S. No. 22/2003 is liable to be set aside. 4 4. I have gone through both the applications filed by respondents dated 19-01-2007 for bringing legal heirs on record as well as condonation of delay. It is the case of the respondents that legal heirs of deceased original plaintiff No. 2 residing in other village and being Adiwasi, it remained on their part to take immediate steps for making those applications. It is correct that for want of knowledge, it remained on the part of respondents to take immediate steps for making said applications. 5. Apex Court in the matter of B. Balkrishnan vs. M. Krishnamurthy, reported in (1998) 7 S.C.C. 123 held that where a Court condones delay in positive exercise of discretion, superior Court and more particularly the revisional Court should not normally disturb the same. Para 11, 12 and 13 of this authority 5 reads as under. "11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be 6 kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result 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 vs. Kuntal Kuwari and State of W.B. v. Administrator, Howrah Municipality. 13. 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 Could should not 7 forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." 6. Considering these facts, I do not find any substance in the present Writ Petition and same is dismissed summarily. [ K.K. TATED, J.] sut/OCT09/wp6786.09