High Court
Legal Reasoning
sa-147-2009.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.147 OF 2009WITH CA/3313/2009 WITH CA/11162/2010Krishna Chindha Gharte,Age: 48 Years, Occu: Service, R/o: Samode, Taluka Sakri, District Dhule...AppellantVERSUS1.Ishwar Krishna Gharte,Age: 22 Years, Occu: Student,2.Miss. Manisha @ Madhuri D/o. Krishna Gharte,Age: 21 Years, Occu: Student,Both R/o. C/o. Gangadhar Eknath Kshirsagar, Behind J.M. Tailor, Shramik Nagar, Nampur Road, Satana, Taluka Satana, District Nashik.3.Smt. Banubai Chindha Gharte,Aga: 78 Years, Occu: Agriculture,4.Bhatu Chindha Gharte,Age: 53 Years, Occu: Agriculture, Nos. 3 and 4 R/o: Samode, Taluka Sakri, District Dhule.5.Waman Chindha Gharte,Age: 45 Years, Occu: Service, R/o: Pratap College, Amalner, Taluka Amalner, Dist. Jalgaon.6.Balasaheb Chindha Gharte,Age: 38 Years, Occu: Service, R/o: Uttamrao Patil Mahavidyalaya, Dahiwel, Taluka Sakri,District: Dhule.7.Yamunabai Yashwant Pawar,Age: 57 Years, Occu: Agriculture, R/o: Sompur, Taluka Satana,District: Nashik.8.Sau. Shakuntala Shekhar Gavande (Dismissed) sa-147-2009.odt(2)9.Sau. Ranjana Yuvraj Nandan,Age: 38 Years, Occu: Household, R/o: Taharabad, Taluka Satana, District Nashik.10. Sau. Vijaya @ Bharti Vasant Patil,Age: 37 Years, Occu: Household,R/o: Pimpalner, Taluka Sakri,District Dhule...Respondents...Mrs. R.S. Kulkarni, Advocate for Appellant. Mrs. C.S. Deshmukh, Advocate for Respondent Nos.1 & 2.Mr. A.S. Sawant, Advocate for Respondent Nos.3, 6, 7 & 9.... CORAM : S.G. CHAPALGAONKAR, J. DATED : MAY 07, 2025JUDGMENT : 1.The appellant impugns judgment and order dated16.06.2008 passed by District Judge-II, Dhule in Misc. CivilApplication No.96 of 2007, by which prayer to condone delay of 112days caused in filing regular civil appeal against judgment and decreedated 30.07.2007 passed by Joint Civil Judge, Junior Division, Sakrihas been declined. 2.The appellant is original defendant no.1 in Regular CivilSuit No.48 of 2001 that has been instituted by respondent no.1seeking decree of partition and separate possession. Regular CivilSuit No.48 of 2001 has been decreed vide judgment and order dated30.07.2007 and plaintiffs are granted 1/3rd share each in suitproperties. The appellant/defendant, being aggrieved by the decreepassed by the Trial Court, filed appeal before the District Judge atDhule along with Misc. Civil Application No.96 of 2007 to condone sa-147-2009.odt(3)delay of 112 days. The appellant explained reason for delay in para 4of application which states that in the month of September 2007,there was proposal for settlement and talk was going on. However,two days before proposal for settlement was rejected by plaintiffs. 3.The plaintiffs/respondents refuted the contents of para 4and denied contention as to proposal for compromise or discussion bythe parties. In this scenario, the learned District Judge rejected Misc.Civil Application No.96 of 2007 vide impugned order dated16.06.2008. 4.Aggrieved by the order dated 16.06.2008, appellant filedthis second appeal, which has been admitted on 27.02.2009 onfollowing substantial questions of law :“i. Whether the First Appellate Court committed any illegality orimpropriety in not condoning delay of 112 days in filing RegularCivil Appeal?ii. Whether the Trial Court committed error in holding thatmarriage of Krishna with Ashabai is void and as such Ashabai andher children are not necessary parties to the litigation?”5.The learned advocates appearing for respective partiesadvanced their submissions on aforesaid substantial questions of law.Since the present appeal takes exception to order refusing to condonedelay of 112 days, learned advocates concentrated submissions onlyon first substantial question of law and agreed that second substantial sa-147-2009.odt(4)question of law need not be delved into, as it relates to merit ofjudgment delivered by Trial Court.6.Mrs. R.S. Kulkarni, learned advocate appearing forappellant submits that parties are litigating over rights in respect ofimmovable properties. The suit is filed for decree of partition andseparate possession. In such case, decision on merit would bring endto litigation and parties can act upon crystallized rights throughjudicial pronouncements. She would submit that the word ‘sufficientcause’ employed under Section 5 of Limitation Act has to be construedliberally and the lis cannot be thrown without looking to merit byemploying technical interpretation of term “sufficient cause”.According to her, Section 5 gaves wide discretion to Courts toentertain lis after expiry of prescribed limitation period and suchdiscretion has to be exercised in judicious manner. In support of hercontention, she relies upon the law laid down by the Hon’ble SupremeCourt in case of Collector Land Acquisition, Anantnag Vs. Mst. Katijiand Ors1.7.Per contra, Mrs. C.S. Deshmukh, learned advocateappearing for respondent nos.1 and 2 supports the impugned order.She would urge that to make out sufficient cause to supportcondonation of delay, atleast plausible explanation needs to be given.In present case, vague and casual plea is employed stating that therewas compromise proposal and it was being discussed between the11987 (2) SCC 107 sa-147-2009.odt(5)parties. The aforesaid contention is specifically denied byrespondents/plaintiffs. Despite such denial, plaintiffs failed to leadany evidence depicting particulars of proposal, nature of discussion,participants in discussion etc. In this background, the learned DistrictJudge has rightly refused to condone delay. As such, no interferenceis called in the impugned order.8.In light of aforesaid submissions, it is essential to refercertain observations of Hon’ble Supreme Court in case of CollectorLand Acquisition, Anantnag (supra), which read thus :“3.The legislature has conferred the power to condonedelay by enacting Section 51 of the Indian Limitation Act of 1963in order to enable the courts to do substantial justice to parties bydisposing of matters on 'merits". The expression "sufficient cause"employed by the legislature is adequately elastic to enable thecourts to apply the law in a meaningful manner which subservesthe ends of justice that being the life-purpose for the existence ofthe institution of courts. It is common knowledge that this Courthas been making a justifiably liberal approach in mattersinstituted in this Court. But the message does not appear to havepercolated down to all the other courts in the hierarchy. And sucha liberal approach is adopted on principle as it is realized that:1. Ordinarily a litigant does not stand to benefit by lodgingan appeal late.2. Refusing to condone delay can result in a meritorious matterbeing thrown out at the very threshold and cause of justice beingdefeated. As against this when delay is condoned the highest thatcan happen is that a cause would be decided on merits afterhearing the parties. sa-147-2009.odt(6)3. "Every day's delay must be explained" does not mean that apedantic approach should be made. Why not every hour's delay,every second's delay? The doctrine must be applied in a rationalcommon sense pragmatic manner.4. When substantial justice and technical considerations arepitted against each other, cause of substantial justice deserves tobe preferred for the other side cannot claim to have vested rightin in-justice being done because of a non-deliberate delay.5. There is no presumption that delay is occasioned deliberately,or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. Infact he runs a serious risk.6. It must be grasped that judiciary is respected not on account ofits power to legalize injustice on technical grounds but because itis capable of removing injustice and is expected to do so.”9.Applying the aforesaid exposition of law in facts ofpresent case, it can be noted that appellant took a plea that therewere compromise talks and on refusal of proposal, he filed appealalong with application for condonation of delay. True thatrespondents have denied such contentions, but none of the partyentered into witness box. The assertions in the application are deniedby making assertions in reply. There is nothing on record to showthat appellant derived any advantage by making delay or it wasdeliberate or intentional. Looking to the length of delay i.e. 112 days,appellant cannot be branded as lethargic or negligent person. Thereasons as given in the application are plausible, particularly when itcomes to suit for partition, parties to the litigation are blood relatives, sa-147-2009.odt(7)the possibility that before litigating further they would try to amicablysettle the dispute, cannot be denied. Therefore, there is no reason tooutright reject explanation tendered by appellant. 10.In the aforesaid circumstances, when parties are litigatingto establish their right over immovable property, the Courts are boundto adopt liberal approach in the matter of delay condonation.However, when delay is not meticulously explained, inconveniencesuffered by other side can be compensated by directing payment ofcertain cost. However in such cases, the lis cannot be terminatedwithout delving into merits of the case. 11.In that view of matter, this Court hold that the learnedDistrict Judge committed illegality and impropriety while declining tocondone delay of 112 days caused in filing appeal and answersubstantial question of law accordingly. 12.In result, second appeal is allowed. The impugned orderdated 16.06.2008 passed by learned District Judge-II, Dhule in Misc.Civil Application No.96 of 2007 is quashed and set aside. 13.Misc. Civil Application No.96 of 2007 is allowed. Delayof 112 days caused in filing appeal is condoned. Appeal be registeredand taken up for disposal on merit in accordance with law. 14.Parties to appear before learned District Judge at Dhuleon 23.06.2025.
Decision
sa-147-2009.odt(8)15.Pending civil applications stand disposed of. (S.G. CHAPALGAONKAR, J.)Mujaheed//