1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 656 OF 2010 Santosh Shrikrushna Deorao and another .... APPELLANTS V E R S U S Shrikrushna Kondiram Deorao .... RESPONDENT Mr. Sandeep S. Deshmukh, Advocate for appellants. Mr. N.V. Gaware, Advocate for respondent. CORAM : S.V. GANGAPURWALA, J. DATE : 22/11/2010 ORAL ORDER : 1. The present Appeal is filed by the original defendants. 2. The present respondent, who is the father of the present appellant had filed Suit bearing Regular Civil Suit No. 20 of 2007 for declaration of ownership and permanent injunction. The said Suit came to be decreed vide Judgment and decree dated 26/04/2007. The said Suit proceeded exparte. The present appellant applied for the certified copy of the Judgment and decree on 26/7/2007, got the same on 4/8/2007 and preferred Appeal before the District Court, Ahmednagar on 16/8/2007. As there was delay of 79 days in filing Appeal, the present appellant also filed an application for condonation of delay bearing Application No. 148 of 2007. The said application was contested by the 2 present respondent. The District Judge – 2, Ahmednagar vide its Judgment and Order dated 21/09/2010 rejected the said application. Being aggrieved by the same, the present appellant has filed the present Second Appeal. 3. This Court vide its Order dated 11/10/2010 had issued notices to the respondents for final disposal of the Second Appeal. Pursuant to the notice, the respondent has appeared and resisted the said Appeal by filing affidavit in reply. 4. In the facts and circumstances of the case, following substantial question of law arises : (i) Whether the ground stated by the appellant for condonation of delay comes within the realm of the expression “ sufficient cause ” as enshrined under Section 5 of the Indian Limitation Act ? 5. With the consent of the learned counsel for the respective parties, the present Second Appeal is taken up for final hearing. 6. Mr. Sandeep S. Deshmukh, the learned counsel for the appellant submitted that the Suit proceeded exparte and the present appellant was not aware of the Judgment and decree passed by the Trial Court. After the appellant got the knowledge of the Judgment and decree, he immediately filed an application for certified copy on 26/7/2007 and received it on 4/8/2007. Thereafter immediately filed Appeal on 16/8/2007. The learned counsel contended that the proceedings involved invaluable rights of the appellant in the immovable property. The expression “ sufficient cause ” has to be construed liberally. The learned counsel further contended that the appellant was not to gain anything by causing delay as an order of injunction is operating against him. 3 He has submitted that the delay be condoned and the appellant be given an opportunity to contest the Appeal on merits. 7. Per contra, Mr. N.V. Gavare, the learned counsel for the respondent/original plaintiff strenuously contended that the application is based on false averments. It has been stated that the application for certified copy was made after the receipt of the notice of Darkhast filed by the plaintiff, but the notice of Darkhast has been served upon the present appellant on 16/8/2007, whereas an application for certified copies was made on 26/7/2007, which were received on 4/8/2007. This shows that the statement is incorrect and no latitude can be shown to such a litigant. The learned counsel further contends that the suit summons were served upon the appellant. He has also admitted in his cross examination that as per the legal advise, he was waiting and watching the proceedings. All these facts show negligence on the part of the appellant, which can not come within the ambit and purview of the expression “ sufficient cause ”. The learned counsel relied on the Judgment of the Apex Court in the case of Santosh Hazari V/s Purushottam Tiwari – deceased by L.Rs. - reported in 2001 (2) Mh.L.J. - 786 to contend that the present case would not come within the purview of substantial question of law within the meaning of Section 100 of the Code of Civil Procedure. Mr. Gaware, the learned counsel further relied on the Judgment of the Apex Court in the case of P.K.Ramachandran V/s State of Kerala and another - reported in AIR 1998 Supreme Court - 2276, the Judgment of the learned Single Judge of this Court in the case of Victor Albuquerque V/s Saraswat Co-operative Bank Ltd. and others - reported in AIR 1998 – Bombay – 346 and the Judgment of the learned Single Judge of this Court in the case of Kamalbai Narasaiyya Shrimal & anr. V/s Ganpat Vithalrao Gavare - reported in 2007 (1) Bom. C.R. - 51 and the Judgment of the learned Single Judge in the case of Special Land Acquisition Officer & another V/s Jose Prazeres de Piedade Pinto & Others - reported in 2006 (2) Bom. C.R. - 773 to contend that the law of Limitation has to be applied with all rigours and if no sufficient cause is shown, the delay can not be condoned. 4 8. With the assistance of the learned counsel, I have gone through the Judgments delivered by the Courts below. 9. It is a trite law that when the procedural technicalities and the cause for substantial justice are pitted against each other, the cause for substantial justice shall prevail. It is held by the Apex Court that the Judiciary is respected not because it can deny justice on technical grounds, but it can sub-serve the cause of substantial justice. 10. The delay caused in the present case is of 79 days. It is a fact that the proceedings had proceeded exparte. There is nothing on record to show that the summons which were served on the present appellant were accompanied with the copy of the plaint to come to the conclusion that the service in the Suit was legal and proper. In absence of the same, benefit will have to be given to the appellant. More over, as the proceedings had proceeded exparte, it can not be presumed that the appellants were aware of the date of the Judgment and decree. The Suit involves the rights of the parties in an immovable property. The expression “ sufficient cause ” will have to be liberally construed. 11. In light of the aforesaid facts and circumstances, I am inclined to allow the Appeal by setting aside the impugned Judgment and Order. At the same time, because of the delay that has been caused, the present respondent has been put to hardship, which is required to be compensated. 12. In the result, I pass the following Order : (I) The Appeal is allowed. (II) The impugned Judgment and Order rejecting the application for condonation of delay is quashed and set aside on condition that the appellant deposits costs of Rs. 10,000/- (Rupees Ten Thousand only ) before the lower appellate Court on or before 6/12/2010. (III) The costs deposited by the appellant shall be allowed to be 5 withdrawn by the respondent. (IV) The parties shall appear before the lower appellate Court on 6/12/2010. [ S.V. GANGAPURWALA ] JUDGE knp/SA 656.2010