1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.2150 OF 2009 WITH CIVIL APPLICATION NO.2151 OF 2009 IN SECOND APPEAL ST. NO. 37 OF 2009 Bansilal s/o Mohanlal Pardeshi, Since died, through L.Rs. 1-1. Mohanlal s/o Bansilal Pardeshi, R/o. Ambajogai, Dist. Beed, and others. .. Applicants. Versus Nagorao s/o Mahada Sakhare, R/o. Waghala Radi, Tal.Ambajogai, District Beed. .. Respondent Mr. Arun Dalal,Advocate holding for Mr. S.J. Salunke, Advocate for applicants. None for the respondent. CORAM : K.K. TATED, J. DATE : 26th JUNE, 2009. PER COURT : 1. Heard learned Counsel appearing on behalf of the applicants. Though the respondent is 2 served, no one appeared on behalf of him when the matter was called out for hearing. 2. Present Civil Application is preferred by the original defendants for condonation of 910 days delay in preferring second appeal against the judgment and decree dated 22-02-2006 passed by IInd Ad hoc Additional District Judge, Ambajogai in R.C.A. No.157/1996 arising out of the judgment and decree dated 05-08-1996 passed by IInd Joint Civil Judge, C.J. Ambajogai in R.C.S. No.261/1988. 3. Learned Counsel appearing on behalf of the applicants submitted that the delay of 910 days occurred due to illness of applicant No. 1/1. He submitted that the applicant No. 1/1 was under treatment of Dr. Chauhan G.K. from 01-03-2006 to 01-01-2008. He further submitted that during that period, there was marriage of son of applicant No.1/1 on 26-04-2007. He further submitted that uncle of applicant No. 3 1/3 has suffered from heart attack and paralysis prior to one years. Because of this family difficulties, it remained on the part of the applicants to prefer second appeal within time. 4. It is to be noted that the impugned order passed on 22-02-2006 and the applicants filed application for certified copies on 23-02-2006 and same were ready for delivery on 14-03-2006. Present second appeal came to be filed on 05-01-2009. Learned Counsel appearing on behalf of the applicants mainly relied on medical certificate issued by Dr. Chauhan G.K. It is undated. It is stated in the said certificate that Shri. Pardeshi Mohanlal Bansilal was treated as O.P.D. patient from 01-03-2006 to 01-01-2008. In the said certificate, diagnosis shown urinary infection Hemiriplegia. Nowhere, it is stated in the said certificate that applicant No. 1/1 was not allowed to move anywhere. In any case, other applicants were there to take appropriate steps for filing 4 present second appeal. Nowhere, it is explained in Civil Application what steps were taken by applicant No. 1/2 and 1/3 for preferring second appeal. 5. In construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that 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. In other words, when the period of limitation prescribed has expired, the decree holder has obtained a benefit under the law of Limitation to treat the decree as beyond the challenge and this legal right which has occurred to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to 5 condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the 6 enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection I may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 5 of the Limitation Act. 6. The principles for extension of time under Section 5 of the Limitation Act may be summed up as follows : (a) The party seeking relief has to satisfy the court that he had sufficient cause for not preferring the appeal etc. within the prescribed time; (b) the explanation has to cover the entire period of delay, (c) a litigant should not be easily permitted to take away a right which has accrued to his adversary by lapse of time, (d) the proof of sufficient cause is a 7 condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. 7. Illness may be sufficient cause, but it must be proved that the man was utterly disabled to attend to any duty. When the illness is pleaded as the ground for delay, the illness must subsist for the whole period. When the party produced medical certificate in support of the illness, it should be of such a nature that on the face, it would show that the applicant was not in a position to move anywhere. 8. Considering these facts, I do not find any reason to condone delay of 910 days in preferring present second appeal. Civil Application is dismissed accordingly. 9. In view of the dismissal of Civil Application for condonation of delay, nothing survives in the Civil Application No. 2151 of 2009 and hence same is rejected. 8 10. In view of the order passed in Civil Application for condonation of delay, registration of present Second Appeal is rejected. [ K.K. TATED, J.] sut/JUN09/ca2150.09