Liberal consideration in applications for condonation of delay does not include insufficient cause, negligence and unreasonable delay: Bombay High Court

 on 06 04 2021 on 15 04 1 W.P. No. 8337 2018 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8337 OF 2018Govind S o Gangadhar Jagalpure age 65 years occupation agriculture R o Gudsoor Taluka Udgir Dist. Latur at present Vikas Nagar Degloor road Udgir Taluka Udgir District Latur. ...Petitioner VERSUS1.Laxmibai W o Baburao Pawar @ Upase age 55 years occupation household 2.Baburao S o Ramchandra Pawar @ Upaseage 65 years occupation agriculture3.Dhanraj S o Ramdas Upase age 18 years occupation agriculture4.Balappa S o Rajkumar Upase age 19 years occupation agriculture 5.Tulshidas S o Gangadhar Jagalpure age 50 years occupation agricultureNos. 1 to 5 R o Gudsoor Taluka Udgir Dist. Latur6.Wanmala W o Udhav Damkondwar age 52 years occupation household R o N.D.2 CIDCO proper Nanded Taluka & District Nanded.7.Shobha W o Vilas Lohgaonkar age 49 years occupation household R o Sonpeth Taluka Sonpeth District Parbhani. on 06 04 2021 on 15 04 2 W.P. No. 8337 2018 8.Tungbhadra W o Venkat Kachawar age 47 years occupation household R o at post Patoda Taluka Naigaon District Nanded. 9.Bharat W o Madhukar Devshetwar age 42 years occupation household R o Janwal Taluka Chakur District Latur. ...RespondentsMr. S.V. Suryawanshi Adv. for petitioner. Mr. A.R. Joshi Advocate for respondents No. 1 to 4 C ORAM : N.J. JAMADAR J. Closed for Judgment on : 17th March 2021 Pronounced on : 6th April 2021JUDGMENT :Rule. Rule made returnable forthwith and with theconsent of the Counsels for the parties heard finally.2.The challenge in this petition is to the judgment andorder dated 21st November 2017 passed by the learned DistrictJudge 1 Udgir in Misc. Civil Appeal No. 15 whereby thelearned District Judge was persuaded to dismiss the appeal anduphold the common order passed by the learned Civil JudeUdgir in Misc. Civil Application No. 08 thereby dismissing theapplication for condonation of delay in taking out the application forsetting aside the abatement of Reg. Civil Suit No. 2600 and on 06 04 2021 on 15 04 3 W.P. No. 8337 2018 also dismissing the application for setting aside the abatement.3.Shorn of unnecessary details the background factsleading to this petition can be stated as under:a)Late Gangadhar Jagalpure was the father of petitionerGovind and co applicant Pandurang and respondents No.5 to 7. LateGangadhar had instituted a suit being Regular Civil Suit No. 262 of2000 against respondents No.1 to 4 seeking a declaration that theregistered sale deed vide No. 3944 dated 8th July 1999 executed infavour of respondent No.1 Laxmibai in respect of the ancestralagricultural land bearing survey No. 21 1 admeasuring 5H. 51Rwas void and not binding upon him. It was inter alia averred that respondent No.1 Laxmibai and respondent No.2Baburao had fraudulently got the sale deed executed by lateGangadhar by taking undue advantage of his physical condition andthe trust and confidence which the late Gangadhar had reposed inthem. Gangadhar died on 11th May 2002 leaving behind thepetitioner co applicant Panurang and respondents No. 5 to 7 as hislegal representatives. b)During the life time of Gangadhar the relations betweenlate Gangadhar and the applicants on the one hand and the on 06 04 2021 on 15 04 4 W.P. No. 8337 2018 applicants and respondents No. 5 to 7 on the other hand were notcordial. Deceased Gangadhar was suffering from a serious disease.Thus the applicants were unaware of the institution of the said suit.c)On 3rd January 2008 when the petitioner visited the suitland respondent No.1 Laxmibai obstructed the petitioner fromentering into the suit land as she claimed to have acquired exclusiveownership over the suit land consequent to the dismissal of Reg.Civil Suit No. 262 2000 as having been abated. Thereupon theapplicants obtained the necessary information about the said suitand filed Misc. Civil Application No. 08 for setting aside theorder of abatement dated 3rd April 2006.d)Respondents No. 1 to 4 resisted the application forsetting aside the abatement. It was inter alia contended that theapplication cannot be entertained as there was no prayer forcondonation of delay. Thereupon on 7th October 2014 the applicantstook out a separate applicationseeking condonation ofdelay in taking out the application for setting aside abatement andbringing the legal representatives of deceased plaintiff on record.e)The learned Civil Judge after appraisal of the rivalpleadings and material in support of and in opposition to the prayerfor condonation of delay and setting aside abatement was on 06 04 2021 on 15 04 5 W.P. No. 8337 2018 persuaded to reject both the applications for condonation of delayand for setting aside the abatement by order dated 21st January2015 opining that the applicant had failed to make out a sufficientcause for condonation of almost 12 years delay. The reasonassigned by the applicants that they were unaware of institution ofReg. Civil Suit No. 2600 filed by deceased Gangadhar wasfound to be unworthy of acceptance.f)Being aggrieved the petitioner herein preferred Misc.Civil Appeal No. 15 before the District Court. By theimpugned judgment and order dated 21st of November 2017 thelearned District Judge was persuaded to dismiss the appealconcurring with the view of the trial Court that theapplicants appellants had failed to make out a sufficient cause forcondonation of delay in taking out the application for setting asideabatement and also for setting aside the abatement. Hence thepetitioner applicant No.1 has invoked the writ jurisdiction of thisCourt.4.I have heard Mr. S.V. Suryawanshi the learned Counselfor the petitioner and Mr. A.R. Joshi the learned Counsel forrespondents No.1 to 4 at some length. With the assistance of thelearned Counsels I have perused the material on record. on 06 04 2021 on 15 04 6 W.P. No. 8337 2018 5.Mr. Suryawanshi the learned Counsel for the petitioner strenuously urged that the learned District Judge as well as thelearned Civil Judge have adopted a very pedantic approach. In theprocess the trial Court as well as the Appellate Court lost sight ofthe time tested principle that an application for condonation of delay especially in taking out the application for setting aside abatement ought to receive liberal consideration and discretion has to beexercised so as to advance the cause of substantive justice. As theapplicants had assigned justifiable reason of being unaware of theinstitution of the suit by their late father the Courts below accordingto Mr. Suryawansbhi committed manifest error in declining toexercise the discretion to condone delay and set aside theabatement and thereby deprived the petitioner applicant of thevaluable rights in the suit property. Therefore it is necessary toexercise extra ordinary jurisdiction to correct the errors into whichthe Courts below have fallen urged Mr. Suryawanshi. 6.Per contra Mr. Joshi the learned Counsel forrespondents No.1 to 4 stoutly submitted that the applicants wereguilty of suppression of facts. The material on record indicates thatthe claim of the applicants that they were unaware of the institutionof the suit by their late father was demonstrably false. The assertion on 06 04 2021 on 15 04 7 W.P. No. 8337 2018 of the applicants that they became aware of the institution anddisposal of the suit by late Gangadhar only when respondent No.1allegedly obstructed applicant No.1 Govind from entering into thesuit land is belied by the pleadings and proceedings in Reg. Civil SuitNo. 1697 instituted by co applicant Pandurang and to whichthe applicant petitioner Govind was a party defendant. The suit landi.e. survey No. 21 1 was the subject matter of the said suit as welland respondent No.1 herein was impleaded as a party defendant tothe said suit in her capacity of transferee of the suit land from lateGangadhar under the sale deed dated 8th July 1999 and the plaintcame to be amended to seek a declaration that the said sale deedwas not binding on the share of plaintiff Pandurang. Thus the trialCourt and the Appellate Court were wholly justified in dismissing theapplication for condonation of delay and for setting aside theabatement submitted Mr. Joshi.7.To begin with it may be advantageous to note few un controverted facts. The relationship between late Gangadhar thepetitioner co applicant Pandurang and respondents No. 5 to 7 is notin dispute. It is incontestable that co applicant Pandurang hadinstituted Reg. Civil Suit No. 163 1997 against late Gangadhar petitioner Govind and respondents No. 5 to 7 for partition and on 06 04 2021 on 15 04 8 W.P. No. 8337 2018 separate possession of the joint family properties includingagricultural land bearing survey No. 21 1 the suit land herein. Inthe said suit petitioner Govind had filed a written statement wherein the fact that the petitioner had also instituted a suit forpartition of the joint family property was admitted.8.Respondent No.5 Tulshidas defendant No.3 therein hadfiled an application for addition of the parties as portions of the suitproperties therein were alienated during the pendency of the saidsuit. Respondent No.1 Laxmibai was also sought to be impleaded asparty defendant. Likewise co applicant Pandurang had filed anapplication for impleading respondent No.1 Laxmibai as a partydefendant with the assertion that late Gangadhar defendant No.1therein had executed a sham sale deed in favour of respondent No.1on 8th July 1999. Both these applications were allowed and thetransferees including respondent No.1 Laxmibai were impleaded asparty defendants. Moreover by way of amendment co applicantPandurang sought a declaration that the said sale deed did not bindthe share of the plaintiff in the suit land. Indisputably lateGangadhar also instituted suit being Reg. Civil Suit No. 2600against respondents No.1 to 4 with the averments that the sale deedin respect of suit land was fraudulently got executed from him and it on 06 04 2021 on 15 04 9 W.P. No. 8337 2018 was void and not binding upon him. 9.In the backdrop of aforesaid facts it is necessary to notethat there is not much controversy over the fact that late Gangadhardied on 11th May 2002. The application for setting aside theabatement was preferred by the petitioner and co applicantpandurang on 16th January 2008. Indisputably the application forcondonation of delay in taking out the said application for settingaside the abatementwas preferred on 7th October 2014. 10.From a meaningful reading of the application to set asidethe abatement it becomes evident that it proceeds on a singularpremise that deceased Gangadhar was suffering from a virulentdisease and late Gangadhar and his legal representatives wereestranged and thus the applicants were not aware of the institutionof the said suit. The trial Court and the Appellate Court were of theview that the said reason ascribed by the applicant did not meritacceptance as a sufficient cause for condonation of delay.11.The learned Counsel for the petitioner would urge thatthe aforesaid approach of the Courts below is not in consonance withlaw. It was submitted that the Courts ought to have taken a liberalview of the matter so that the cause of substantive justice is on 06 04 2021 on 15 04 10 W.P. No. 8337 2018 advanced. In order to lend support to this submission Mr.Suryawanshi placed a very strong reliance on the judgment of aDivision Bench of this Court in the case of Keshao s o Kawadu Maraland another Vs. State of Maharashtra and others 2005(1)Mh.L.J.1059 wherein emphasizing the nature of theprovisions under Order XXII of the Code of Civil Procedure 1908 which are essentially procedural and thus required to be construedas handmaid of justice the Division Bench observed as under:“8. We are of the view that the order passedby the learned Single Judge is unsustainable inlaw. The delay in taking out the application has tobe computed from the date of knowledge of thedeath of a party. It is the case of the appellantsthat they had no knowledge and as soon as theyacquired knowledge they took out application forbringing legal heirs on record. This aspect asregards knowledge is not seriously disputed bythe respondent. Secondly it is now well settledthat the provisions of Order 22 Rule 1 CivilProcedure Code are not penal in nature. It is arule of procedure and substantial rights of theparties cannot be defeated by pedantic approachby observing strict adherence to the proceduralaspect of law. In the aforesaid circumstances weare of the view that the learned Single Judge wasin error in refusing to use discretion vested in him on 06 04 2021 on 15 04 11 W.P. No. 8337 2018 for condoning delay in taking out application forbringing legal heirs on record. Even if proceedingabates the Court has ample powers to set asidethe abatement and condone the delay to bringlegal heirs on record.”12.A strong reliance was also placed on the judgment of theSupreme Court in Perumon Bhagvathy Devaswom Perinadu VillageVs. Bhargavi Ammaby L.Rs. and others 2009(2) Mh.L.J. 1 wherein the Supreme Court after an elaborate discussion on theapproach to be adopted in considering applications for condonationof delay especially in the context of the delay in bringing on recordthe legal representatives of a deceased party summarized theprinciples as under: “ 8. The principles applicable in consideringapplications for setting aside abatement may thusbe summarized as follows :The words "sufficient cause for not making theapplication within the period of limitation" shouldbe understood and applied in a reasonable pragmatic practical and liberal manner depending upon the facts and circumstances ofthe case and the type of case. The words‘sufficient cause in section 5 of Limitation Actshould receive a liberal construction so as toadvance substantial justice when the delay is not on 06 04 2021 on 15 04 12 W.P. No. 8337 2018 on account of any dilatory tactics want of bonafides deliberate inaction or negligence on thepart of the appellant.In considering the reasons for condonation ofdelay the courts are more liberal with referenceto applications for setting aside abatement thanother cases. While the court will have to keep inview that a valuable right accrues to the legalrepresentatives of the deceased respondent whenthe appeal abates it will not punish an appellantwith foreclosure of the appeal for unintendedlapses. The courts tend to set aside abatementand decide the matter on merits rather thanterminate the appeal on the ground of abatement.(iii) The decisive factor in condonation of delay isnot the length of delay but sufficiency of asatisfactory explanation.The extent or degree of leniency to be shownby a court depends on the nature of applicationand facts and circumstances of the case. Forexample courts view delays in makingapplications in a pending appeal more lenientlythan delays in the institution of an appeal. Thecourts view applications relating to lawyer slapses more leniently than applications relating tolitigant s lapses. The classic example is thedifference in approach of courts to applications forcondonation of delay in filing an appeal andapplications for condonation of delay in refiling on 06 04 2021 on 15 04 13 W.P. No. 8337 2018 the appeal after rectification of defects.Want of ‘diligence or ‘inaction can beattributed to an appellant only when somethingrequired to be done by him is not done. Whennothing is required to be done courts do notexpect the appellant to be diligent. Where anappeal is admitted by the High Court and is notexpected to be listed for final hearing for a fewyears an appellant is not expected to visit thecourt or his lawyer every few weeks to ascertainthe position nor keep checking whether thecontesting respondent is alive. He merely awaitsthe call or information from his counsel about thelisting of the appeal. ”13.Placing reliance on the aforesaid enunciation of law Mr.Suryawanshi the learned Counsel for the petitioner urged with adegree of vehemence that the Courts below did not adhere to any ofthe aforesaid principles and were unduly influenced by the fact thatthere was delay of about six years in taking out the application forsetting aside the abatement and initially it was not accompanied byan application for condonation of delay. The fact that a formalapplication for condonation of delaycame to be filed in theyear 2014 could not have been accorded undue weight urged Mr.Suryawanshi. on 06 04 2021 on 15 04 14 W.P. No. 8337 2018 14.The legal position is fairly crystallized to the effect thatthe expression ‘sufficient cause’ within the meaning of section 5 ofthe Limitation Act 1963 or under Order XXII of the Code or any otherlike provision ought to receive a liberal consideration so as toadvance the cause of substantial justice when no negligence orinaction or want of bonafide is attributable to a party. In the verynature of things whether the explanation furnished in a given case would constitute a ‘sufficient cause’ depends on the facts of thecase. Though no straight jacket formula can be devised yet theCourts ought not to proceed with a presumption against sufficiencyof the cause and consider the explanation through the prism offinding fault. Where no negligence or inaction or want of bonafidecan be imputed to a party normally the discretion ought to beexercised in favour of the party seeking condonation of delay. At thesame time Court should be alive to the fact that by allowingproceeding to abate a valuable right has accrued to the other partywhich ought not to be defeated by condoning the delay in a routinefashion. Thus the courts have to strike a balance between thecompetitive interests of advancing cause of substantive justice bycondoning the delay and that of not depriving a party of an accruedright where a clear case of negligence and inaction is made out. on 06 04 2021 on 15 04 15 W.P. No. 8337 2018 15.In the case at hand on a careful analysis of the material the singular reason ascribed by the applicants that they wereunaware of the institution of the suit by late Gangadhar and thatthey became aware of the proprietory title which respondent No.1Laxmibai professed to exercise over the suit land in the year 2008only does not appear to be worthy of acceptance. Indubitably co applicant pandurang had instituted Reg. Civil Suit No. 163 1997much prior in point of time to the suit instituted by late Gangadharand had sought general partition of the joint family propertiesincluding survey No. 21 1Supreme Court Cases 685 on 06 04 2021 on 15 04 17 W.P. No. 8337 2018 wherein after adverting to a number of precedents including thejudgment in the case of Perumon Bhagwathy Devaswom the Supreme Court cautioned against construing the provisions ofthe Order XXII of the Code and Section 5 of the Limitation Act insuch a manner as to render them redundant and inoperative.18.The observations of the Supreme Court in paragraphs 32to 35 and 38 are instructive. They read as under:“ 32. It must be kept in mind that whenever alaw is enacted by the legislature it is intended tobe enforced in its proper perspective. It is anequally settled principle of law that the provisionsof a statute including every word have to begiven full effect keeping the legislative intent inmind in order to ensure that the projected objectis achieved. In other words no provisions can betreated to have been enacted purposelessly. 33.Furthermore it is also a well settledcanon of interpretative jurisprudence that theCourt should not give such an interpretation tothe provisions which would render the provisionineffective or odious. Once the legislature hasenacted the provisions of Order 22 with particularreference to Rule 9 and the provisions of theLimitation Act are applied to the entertainment ofsuch an application all these provisions have tobe given their true and correct meaning and must on 06 04 2021 on 15 04 18 W.P. No. 8337 2018 be applied wherever called for. If we accept thecontention of the Learned Counsel appearing forthe applicant that the Court should take a veryliberal approach and interpret these provisions(Order 22 Rule 9 CPC and Section 5 of theLimitation Act) in such a manner and so liberally irrespective of the period of delay it wouldamount to practically rendering all theseprovisions redundant and inoperative. Suchapproach or interpretation would hardly bepermissible in law.34.Liberal construction of the expression‘sufficient cause is intended to advancesubstantial justice which itself presupposes nonegligence or inaction on the part of theapplicant to whom want of bona fide isimputable. There can be instances where theCourt should condone the delay equally therewould be cases where the Court must exercise itsdiscretion against the applicant for want of any ofthese ingredients or where it does not reflect“sufficient cause” as understood in law.(Advanced Law Lexicon P. Ramanatha Aiyar 2ndEdition 1997).35.The expression “sufficient cause” impliesthe presence of legal and adequate reasons. Theword “sufficient” means adequate enough asmuch as may be necessary to answer the purposeintended. It embraces no more than that which on 06 04 2021 on 15 04 19 W.P. No. 8337 2018 provides a plentitude which when done sufficesto accomplish the purpose intended in the light ofexisting circumstances and when viewed from thereasonable standard of practical and cautiousmen. The sufficient cause should be such as itwould persuade the Court in exercise of itsjudicial discretion to treat the delay as anexcusable one. These provisions give the Courtsenough power and discretion to apply a law in ameaningful manner while assuring that thepurpose of enacting such a law does not standfrustrated.36. ….37. ….38. Above are the principles which shouldcontrol the exercise of judicial discretion vested inthe Court under these provisions. The explaineddelay should be clearly understood incontradistinction to inordinate unexplained delay.Delay is just one of the ingredients which has tobe considered by the Court. In addition to this theCourt must also take into account the conduct ofthe parties bona fide reasons for condonation ofdelay and whether such delay could easily beavoided by the applicant acting with normal careand caution. The statutory provisions mandatethat applications for condonation of delay andapplications belatedly filed beyond the prescribedperiod of limitation for bringing the legal on 06 04 2021 on 15 04 20 W.P. No. 8337 2018 representatives on record should be rejectedunless sufficient cause is shown for condonationof delay. The larger benches as well as equi benches of this Court have consistently followedthese principles and have either allowed ordeclined to condone the delay in filing suchapplications. Thus it is the requirement of lawthat these applications cannot be allowed as amatter of right and even in a routine manner. Anapplicant must essentially satisfy the abovestated ingredients then alone the Court would beinclined to condone the delay in the filing of suchapplications.” 19.From the aforesaid exposition of the law it becomesabundantly clear that though the paramount consideration whiledetermining an application for condonation of delay remains theadvancement of cause of substantive justice and not allowing theprocedure to score a march over substantive justice yet thesufficiency of cause and explanation for delay warrant consideration.Judicial discretion cannot be so liberally exercised as to condone thedelay where no cause is made out or the cause ascribed isdemonstrably unworthy of acceptance. The delay cannot becondoned for mere asking irrespective of the cause shown andinordinateness thereof. on 06 04 2021 on 15 04 21 W.P. No. 8337 2018 20.On the aforesaid touchstone re adverting to facts of thecase I am of the considered view that the Courts below werejustified in refusing to exercise the discretion. From the ownshowing of the applicants the cause assigned for the delay did notappear reasonable and betrayed inaction and negligence borderingon taking a ground which was incorrect to their knowledge.21.The upshot of aforesaid consideration is that nointerference is warranted in the impugned judgment and order.Resultantly the petition deserves to be dismissed. Hence thefollowing order. O R D E RThe petition stands dismissed. No costs.Rule discharged. JUDGEMadkar 

Summary: Judicial discretion cannot be so liberally exercised as to condone the delay where no cause is made out or the cause ascribed is unworthy of acceptance since paramount consideration while determining an application for condonation of delay remains the advancement of the cause of substantive justice and not allowing the procedure to merely score a march over substantive justice, yet, the sufficiency of cause and explanation for delay warrant consideration. This remarkable judgment was passed by the Bombay High Court in the matter of GOVIND S/O GANGADHAR JAGALPURE V LAXMIBAI W/O BABURAO PAWAR AND ORS. [WRIT PETITION NO. 8337 OF 2018] by Honourable Justice N.J. Jamadar. The challenge in this petition is to the judgment and order dated passed by learned District Judge, Udgir, in Misc. Civil Appeal No. 7 of 2015, whereby he dismissed the appeal and upheld the common order of Civil Judge to dismiss the application for condonation of delay. The background facts leading to this petition are, the father of the petitioner, Late Gangadhar Jagalpure, had instituted a suit against respondents seeking a declaration that the registered sale deed executed in favour of respondent No.1 was void and not binding. It was averred that respondents had fraudulently got the sale deed executed by him by taking undue advantage of his physical condition and the trust and confidence which he had reposed in them. It is to be noted that Gangadhar died in 2002 leaving behind the petitioner, co-applicant Panurang, and respondents No. 5 to 7 as his legal representatives. Since the applicant was unaware about the suit land being in possession of Respondent, he filed a Civil Application for setting aside the order of abatement which was resisted by them since they contended that the application cannot be entertained as there was no prayer for condonation of delay. Hence, the aggrieved applicant invoked the writ jurisdiction of this Court. It was noted that late Gangadhar died on 11th May 2002 but the application for setting aside the abatement was preferred in 2008 whereas the application for condonation of delay in taking out the said application for setting aside the abatement was preferred in 2014. In this regard, the Court observed that late Gangadhar and his legal representatives were estranged and, thus, the applicants were not aware of the institution of the said suit thus the “The legal position is fairly crystallized to the effect that the expression ‘sufficient cause’ within the meaning of section 5 of the Limitation Act 1963 or under Order XXII of the Code or any other like provision ought to receive a liberal consideration so as to advance the cause of substantial justice. Where no negligence or inaction or want of bonafide can be imputed to a party, normally the discretion ought to be exercised in favour of the party seeking condonation of delay. At the same time, Court should be alive to the fact that by allowing the proceeding to abate, a valuable right has accrued to the other party which ought not to be defeated by condoning the delay in a routine fashion.” On the basis of the facts and circumstances of the case, the court asserted that “the claim of the applicants that they were unaware of the institution of the suit itself pales insignificance. Since Pandurang had instituted the suit for partition against late Gangadhar, but the petitioner also had instituted a suit for partition, which was eventually dismissed. In the circumstances, the Courts below cannot be said to have committed an error in arriving at a finding that the cause sought to be ascribed by the applicants was not sufficient.” The court relied on Supreme Court cases; Balwant Singh (dead) Vs. Jagdish Singh and others, 2010(8) SCC 685 and cautioned against construing the provisions of the Order XXII of the Code and Section 5 of the Limitation Act in such a manner as to render them redundant and inoperative. Hence, it was stated that “paramount consideration while determining an application for condonation of delay is necessary for the advancement of substantive justice yet, the sufficiency of cause and explanation for delay warrant consideration.”