SupremeCourt in case of Collector, Land Acquisition Officer, Anantnagand another v. MST. Katiji and others reported in
Legal Reasoning
1 WP 13561.23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 13561 OF 2023Chandrakala Namdev Solunke And AnotherVERSUSNilawati Somnath Bhange Through Gpa Somnath WamanraoBhange...Advocate for the Petitioners : Mr.V. B. Anjanwatikar Advocate for Respondent : Mr. P.B. Patil (Borse) ...CORAM :S. G. CHAPALGAONKAR, J.Dated:June 16, 2025ORDER :-1.Petitioners impugns the order dated 13.5.2019passed by the learned District Judge, Ambajogai, District Beedin Misc. Civil Application No.35 of 2018, whereby petitionersprayer to condone delay caused in filing application forrestoration of the appeal has been rejected.2.The respondent/original plaintiff instituted theRegular Civil Suit No.268 of 2002 seeking decree of possessionin respect of the suit property. The Trial Court decreed the suitvide judgment and order dated 9.3.2009. Aggrievedpetitioner/original defendant filed Regular Civil Appeal No.41of 2009 before the learned District Judge, Ambajogai.However, said appeal came to be dismissed for want of 2 WP 13561.23.odtprosecution vide order dated 12.1.2018. Petitioner filed Misc.Civil Application No.35 of 2018 seeking to condone the delaycaused in filing application for re-admission of appeal. Thelearned District Judge, after considering rival contentions,declined to condone delay observing that petitioners failed toshow sufficient cause. 3.Being aggrieved by the aforesaid order, presentwrit petition is filed.4.Mr. V.B. Anjanwatikar, learned advocate appearingfor petitioners submits that dispute pertains to agriculturalland. Parties are litigating over their rights on immovableproperty. In such a matter, it is necessary to adopt liberalapproach in the matter of condonation of delay and it isdesirable that parties are left for decision on merit. In supportof his contentions, he relies upon decision of the SupremeCourt in case of Collector, Land Acquisition Officer, Anantnagand another Vs. MST. Katiji and others reported in 1987 (2)SCC 107.5.Per contra, Mr. P.B. Patil, learned advocateappearing for respondent would submit that learned District 3 WP 13561.23.odtJudge on appreciation of evidence tendered into service onbehalf of petitioners found that explanation tendered isinsufficient. Reason as employed in application wasmisleading. Mr. Patil submits that respondent was neverdiligent in conducting litigation. He would further point outthat, although, impugned order is passed on 13.5.2019,present writ petition is filed on 3.10.2023 i.e. after four andhalf years. Even, delay in filing present writ petition is not atall explained. Therefore, the present writ petition itselfdeserves rejection on the ground of delay and laches.6.Having considered submissions advanced, it canbe observed that, dispute in the suit is pertaining toagricultural land. Petitioners/defendants alleged to haveencroached upon suit land and enjoying benefit of the same.The Trial Court decreed suit of the plaintiff and directeddelivery of possession of suit property in favour of the plaintiff.Petitioners/defendants filed appeal before District Judge,which has been dismissed for want of prosecution vide orderdated 17.1.2018. Application for its re-admission was filed bypetitioners alongwith application for condonation of delay of 4 WP 13561.23.odt75 days, however, learned District Judge declined to condonedelay vide impugned order dated 13.5.2019.7.It appears that petitioners in support of delaycondonation put forward reasons as incorporated in paragraphnos.2 to 7 of their application. According to them, their father-in-law, namely Mukinda Solunke was ill due to paralysis attacksince last two years. Therefore, they were busy in taking hiscare and could not pass necessary instructions to theiradvocate. Further, they contend that they were not awareabout order as to dismissal of appeal for want of prosecutiondue to communication gap. In support of their contentions,they put on record documents as to medical treatmentadvanced to father-in-law i.e. Mukinda Solunke during theperiod from 2.7.2016 to 10.2.2018. On scrutiny of thosedocuments, learned District Judge noted that father-in-law ofpetitioners was not suffering from paralysis, but, he waspatient of degenerative spondylosis and osteoporosis. He wassubjected to certain tests etc. during the period from 2016 to2018. Finding conflict in pleadings as to illness of Mukindaand documents of his treatment, learned District Judge hasobserved that reason set out in the application is false. Apart- 5 WP 13561.23.odtfrom it, learned District Judge has observed that, thepetitioners were negligent in prosecuting proceeding, whichhas caused prejudice to the respondent/plaintiff.8.From scrutiny of record, it can be observed thatthe statement as to illness of father-in-law made by petitionerswas partially incorrect. However, it is not false. Documentsclearly spells out that Mukinda was suffering from illness,although not paralysis as contended in the application. Factremains that, petitioners being ladies are required to take careof ailing family members. In this background, merely becauseailment is incorrectly mentioned, reasons put forth bypetitioners could not have been discarded. At this stage,reference can be made to observations of the Hon’ble SupremeCourt in case of Collector, Land Acquisition Officer, Anantnagand another Vs. MST. Katiji and others reported in 1987 (2)SCC 107, wherein Supreme Court has laid down certainprinciples for dealing with the prayer for delay condonations.It is observed that ordinarily a litigant does not stand to benefitby lodging an appeal late. Refusing to condone delay canresult in a meritorious matter being thrown out at the verythreshold and cause of justice being defeated. Every day's delay
Decision
6 WP 13561.23.odtneed not be explained. However, the doctrine must be appliedin a rational common sense pragmatic manner. Whensubstantial justice and technical considerations are pittedagainst each other, cause of substantial justice deserves to bepreferred for the other side cannot claim to have vested rightin injustice being done because of a non-deliberate delay.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.It is further observed that, judiciary is respected not on accountof its power to legalize injustice on technical grounds butbecause it is capable of removing injustice and is expected todo so.9.Applying aforesaid principles to facts of thepresent case and looking to length of the delay i.e. 75 days,this Court finds that learned District Judge failed in error indeclining to condone the delay.10.It is true that even present writ petition is filedafter four and half years, thereby raising challenge toimpugned order passed by the learned District Judge. It is truethat, aforesaid delay is not explained in the writ petition. 7 WP 13561.23.odtHowever, fact remains that impugned order is passed on13.5.2019. Since March, 2020 there was pandemic situationand functioning of the Court was stalled till September 2021.Present writ petition is filed on 25.9.2023. In this background,definitely, there is substance in contention of learned advocateappearing for the respondent that delay in filing writ petition isnot properly explained. However, this Court finds thatconsidering nature of litigation, delay and laches in filing writpetition can be condoned by compensating the respondents byway of adequate costs.11.While determining appropriate costs, this Courtobserves that respondent is a decree holder in RCSNo.268.2002. Petitioners/defendants are enjoying possessionof the suit land. Delay in proceeding would result in undueadvantage to the petitioners. It is contended that petitionersare taking irrigated crop by cultivating suit land. In thisbackground, looking to length of the delay and advantage thatcould have been derived by the petitioners, this Court deems itproper to impose costs of Rs.1.00 Lakh upon petitioners, whichshall be condition precedent for considering application for re- 8 WP 13561.23.odtadmission of appeal by the learned District Judge. In theresult, following order is passed.O R D E R i.Writ Petition is allowed.ii.The impugned judgment and order dated13.5.2019 passed by the learned District Judge,Ambajogai in Misc. Civil Application no.35 of 2018is hereby quashed and set aside.iii.Misc. Civil Application No.35 of 2018 standsallowed. Delay of 75 days is hereby condoned.iv.The learned District Judge shall considerapplication for re-admission of appeal on its ownmerit subject to condition that petitioners depositcosts of Rs.1.00 Lakh (Rs. One Lakh) with DistrictCourt within a period of four weeks from the dateof this order. On deposit of such costs, amount bereleased in favour of the respondent/plaintiff.v.Writ Petition stands disposed of. ( S. G. CHAPALGAONKAR, J. )…aaa-