-1- IN THE HIGH COURT OF BOMBAY AT GOA MISC. CIVIL APPLICATION NO. 47 OF 2009 IN FIRST APPEAL NO. 79 OF 2002 Deputy Collector & SDOP & anr. …... Applicants V e r s u s Shri Antonio O. Lobo & anr. …... Respondents Mr. H. D. Naik, Advocate for the Applicant. Coram :- D. G. KARNIK F. M. REIS, JJ. Date : 30 th August, 2010. P.C. This is an application praying for condonation of delay of 528 days for setting aside abatement and bringing the legal heirs of the deceased Respondent no.2 on record. The reason given in the application at Para 5 is that the Applicants were informed about the death of the Respondent no.2 sometime in the month of October, 2008. It is further stated by the Applicants that they were able to procure the death certificate of the Respondent no.2 only in the month of January, 2009, and thereafter, the Applicants have filed the said application for bringing the legal heirs of the deceased Respondent no.2 on 19.01.2009. 2. On perusal of the translation of the death certificate which is annexed at page 6 of the application, we find that the translation in English was obtained on 12.06.2008. As such, the statement by the Applicants that they obtained the certificate in January, 2009, is contrary to the records and cannot be accepted. So also, the contention of the Applicants that only in the month of October, 2008, they -2- came to know about the death of the Respondent no.2 is also not correct as, on perusal of the records in First Appeal no. 79/2002, we find that on 21.04.2008, the learned Addl. Government Advocate sought time for taking steps in respect of the deceased Respondent no.2. This shows that the statement made by the Applicants that they came to know about the death of the Respondent no.2 only in October, 2008, is contrary to the records. 3. The Apex Court in the Judgment reported in 2008(17) S.C.C. 448, in the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project has held thus : “12. … Having received the said communication, the respondent did not act in the matter and initiated any steps for filing the appeals if it was really aggrieved by the decision of the Reference Court. There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to somehow get the relief from the Court. In our considered opinion, incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. 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 its part by condoning delay. [See Binod Bihari Singh v. Union of India1.] 13. … -3- 14. It is true that the power to condone the delay rests with the court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay and ordinarily the superior court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court.” 4. In view of the incorrect statements made by the Applicants in the said application, no discretion can be exercised in their favour to condone the delay as no sufficient cause has been shown to condone such delay. The application for condonation of delay is rejected and, consequently, the application for bringing the legal heirs of Respondent no.2 is also rejected as barred by limitation. D. G. KARNIK, J. F. M. REIS, J. arp/*