17.ca.4550.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4550 OF 2009 IN FIRST APPEAL (STAMP) NO.27487 OF 2009 Nahalchand Laloochand Pvt. Ltd., ..Applicant. Versus Babulal Mohanlal Mehta and 7 others. ..Respondents. .... Mr.Rajesh N. Kachare, Advocate for the Applicant. .... CORAM : K. K. TATED, J. DATED : 4TH DECEMBER, 2009 P.C. 1. Heard learned Counsel Mr.Kachare for the applicant. 2. Present Civil Application is preferred by original defendant for condonation of delay of 6 years & 89 days caused in filing the First Appeal against the judgment and decree dated 22nd July, 2003 passed by the Bombay City Civil Court at Mumbai in S.C. Suit No.1494 of 1985. 3. Learned Counsel appearing on behalf the applicant states that the papers were misplaced in their office and, 17.ca.4550.09 2 therefore, it remained on their part for applying for certified copy of the judgment and decree immediately. He further stated that the staff of the applicant was looking for papers in the other legal proceedings when the Clerk Mr.Gampat Kambli found the papers and proceedings in respect of the present Suit and thereafter immediately applied for certified copy on 5th November, 2009 and the same was received by them on 16th November, 2009. To support this contention, the applicant filed affidavit of the said Clerk Mr.Ganpat Kambli dated 17th November, 2009. 4. There is no justification given in the present Civil Application for condonation of 6 years and 89 days in preferring the appeal. The learned Counsel appearing for the applicant relied on affidavit dated 17.11.2009 filed by Mr.Ganpat Kambli, which is at Exhibit-A in support of their case. It is to be noted that in the first para of affidavit of Mr.Ganpat Kambli it is stated that he is Clerk and in the service of the appellant, whereas in the verification para he states that he is Managing Director of the appellant. It is 17.ca.4550.09 3 very difficult to rely on this affidavit of Mr.Ganpat Kambli. Whether he has filed this affidavit as a Clerk or Managing Director of the applicant is not clear. This itself shows that the applicant for condonation of delay of 6 years & 89 days filed a false affidavit. Perusal of the application does not reveal any diligence on the part of the applicant in the conduct of the proceedings. When already Suit has been decreed, the applicant ought to have been more careful and diligent in prosecuting the matter further. Under the decree dated 22nd July, 2003 the defendant, the applicant herein, were directed to execute a conveyance of the suit property in favour of the Housing Co-op Society of the respondents within two months of the decree. If the applicant was aggrieved by the decree and wanted to prefer appeal, it is improbable that he would instruct his lawyer to prefer appeal in October, 2009 i.e. six years after the decree. The misplacement of the case papers could not prevent the applicant from instructing his advocates in time for obtaining certified copy of the judgment and 17.ca.4550.09 4 decree. The ground put forward by the applicant for not instructing the advocate for obtaining the certified copy of the judgment and decree and not preferring the appeal within time is wholly untenable. The expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and a valuable legal right accrues in favour of the decree holder by lapse of time and it cannot be negatived on flimsy grounds. The party seeking condonation of delay has to satisfactorily explain the delay of every day and has to prove by cogent evidence that there was sufficient cause for the delay in preferring the appeal and the same is strikingly absent in this case. 5. In considering Section 5 of the Limitation Act it is relevant to bear in mind two important considerations. First consideration is that expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding 17.ca.4550.09 5 between the parties. In other words, when the period of limitation prescribed has expired, the decree holder has obtained benefit under the law of limitation to treat the decree as beyond the challenge and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. 6. In the present case, the Bombay City Civil Court at Bombay passed decree on 22nd July, 2003 in S.C. Suit No.1494 of 1985. The applicant applied for certified copy of the judgment and decree on 16th November, 2009 i.e. after 6 years. There is no explanation in the present Civil Application for delay of 6 years except the affidavit at Exhibit-A duly affirmed by Mr.Ganpat Kambli which does not make out any sufficient cause. It is clear from the contents of the present Civil Application that for condonation of delay of 6 years & 89 days, the applicant filed affidavit of Mr.Ganpat Kambli. Whether he is a Clerk or Managing Director of the applicant is not clear from the pleadings in the Civil Application. If a party takes false 17.ca.4550.09 6 stand to get rid of the bar of limitation, the Court should not condone the delay. The Apex Court in the matter of Pundlik Jalam Patil (D) by Lrs. Vs. Exe.Eng. Jalgaon Medium Project & Anr. reported in 2008(6) ALL MR 954 held that a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning delay. 7. Considering the Supreme Court authority as well as the contents of the Civil Application and the affidavit of Mr.Ganpat Kambli, I do not find any merit in the present Civil Application and the same is dismissed. No order as to costs. (K.K.TATED, J.)