High Court
Legal Reasoning
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 2125 OF 20151.Shashikalabai w/o Prataprao Deshumkh,age major, occ. Agri.,2.Sanjay s/o Prataprao Deshmukh,age major, occ. Agri.,3.Archana d/o Prataprao Deshmukh,age major, occ. Agri.,4.Aparna d/o Prataprao Deshmukh.age major, occ. Agri.,All R/o Nevpur, Tq. Kannad,Dist. Aurangabad....PetitionersVersus1.Pandurang s/o Shenfadu Pawar,age major, occ. Agri.,2.Sumanbai w/o Pandurang Pawar,age major, occ. Agri.,3.Jaywanta s/o Pandurang Pawar,age major, occ. Agri.,4.Yashwanta s/o Pandurang Pawar,age major, occ. Agri.,5.Jayashree w/o Pandurang Pawar,age major, occ. Agri.,All R/o Chincholi, Tq. Kannad,Dist. Aurangabad.6.Gahendra s/o Prataprao Deshmukh.R/o Nevpur, Tq. Kannad,Dist. Aurangabad....Respondents...Advocate for the Petitioner : Mr. Shubham D. Jayabhar h/f Mr. Jayabhar Dattatraya R.Advocate for Respondents No.1 to 3 and 5 : Mr. D. R. BhadekarPage 1 of 12 WP 2125-2015Advocate for Respondent No.4: Mr. V. P. Golewar …WITHCIVIL APPLICATION NO. 2591 OF 2015 IN WP/2125/2015….CORAM : ARUN R. PEDNEKER, J.Reserved for Judgment on: August 05, 2024Pronounced on: August 09, 2024JUDGMENT :-1.Rule. Rule made returnable. With consent of the parties, heardfinally.2.By the present petition, the petitioners are challenging the orderdated 30/08/2010 in Regular Civil Suit No.101/2000 whereby the suitfiled by the plaintiffs was dismissed in default with costs, and also orderdated 11/07/2014 in M.A.R.J.I. No.35/2011 whereby the application forrestoration of the suit was also dismissed. This Court has consideredthe challenge in the present writ petition only with respect to theorder dated 11/07/2014 in M.A.R.J.I. No. 35/2011.3.The brief facts leading to the filing of the present petition aresummarized as under : -The petitioners are the original plaintiffs who filed the suit forpossession of suit land and compensation against the respondents andPage 2 of 12 WP 2125-2015the suit was pending at the stage of cross examination of plaintiff No.1.The Advocate for the plaintiffs submitted that in spite of givingintimation by RPAD to the plaintiffs, the plaintiffs have not turned upand thus he is unable to proceed with the suit for want of instructionsand presence of plaintiffs. He filed pursis to that effect as Exhibit 112.The suit was listed for cross-examination on 30/08/2010. Earlier anapplication was filed at Exhibit 111 for adjournment which was grantedas a last chance. The suit being very old was also expedited by theHigh Court by general order. The Civil Court held that it has no reasonto adjourn the hearing of the suit and the suit was dismissed in defaultwith cost by the Civil Judge Junior Division, Kannad by order dated30/08/2010.4.Thereafter, the plaintiffs filed an application bearingM.A.R.J.I.No.35/2011 for restoration of the Regular Civil SuitNo.101/2000 with application for condonation of delay of 1 year 1month and 9 days. It is averred in the application that the plaintiff No.1due to her illness was hospitalized and directed bed rest. Plaintiff No.2had come to his village Nevpur, Taluka Kannad and had received noticefrom his Advocate, however they could meet their Advocate only after30/09/2011, when it was informed to them that the suit was dismissedin default for their absence. It is further contended that the plaintiffPage 3 of 12
Legal Reasoning
WP 2125-2015No.3 Mahendra Deshmukh was asked to file an application forrestoration of the suit, however he failed to do so. As such, he has beenadded non-applicant in the application. The application for restorationwas opposed by the non-applicants with a contention that on12/08/2010 the Advocate for the plaintiffs has sought adjournmentwhich was rejected and that there was no of whisper of illness ofplaintiff No.1 in the said application. It is also stated by the learnedAdvocate for the plaintiffs that he had filed application at Exhibit 111stating that he had issued RPAD notice and acknowledgement isawaited and that Advocate for plaintiffs had then filed no instructionspursis vide Exhibit 112, and as such, it was contended that sufficientopportunity was granted, and thereafter, the suit was dismissed. Assuch, it was prayed that the application be rejected. 5.The Trial Court on consideration of the application, response andthe evidence of plaintiff No.1, rejected the application for restoration ofthe suit. Challenging the order passed by the Civil Judge rejecting theapplication for restoration of the suit, so also the earlier order passed bythe Civil Court dismissing the suit for default, the present writ petition isfiled.6.It is contention of the learned Counsel Mr. Shubham D.Page 4 of 12 WP 2125-2015Jayabhar holding for Mr. D. R. Jayabhar for the plaintiffs / petitionersthat notice issued by RPAD was received by plaintiff No.2 when he hadcome to the village, however, he failed to take necessary steps. Thethe plaintiff No.1 is an old age lady who was unwell at that time and wasnot able to attend the Court for cross examination. The Advocate forplaintiff thereafter filed pursis that he has issued notice by RPAD to theplaintiffs but he had not received acknowledgement and that he had notreceived instructions in the matter. On the same day, the suit wasdismissed and no further opportunity was granted. The suit is of theyear 2000 and the plaintiffs have conducted suit for 10 years withdiligence and that the Court ought not to have dismiss the suit or atleast should have allowed the restoration application with a delay of 1year 1 month and 9 days. He relies upon the Judgment in case ofCollector, Land Acquisition, Anantnag and Another vs. Mst.Katiji and Others, reported in AIR 1987 Supreme Court 1353.7.Per contra, the learned Counsel Mr. D. R. Bhadekar forrespondents No.1 to 3 and 5, and learned Counsel Mr. V. P. Golewarfor respondent no.4 submit that the plaintiff has not been diligent inprosecuting the matter and that they were aware of the fact that thematter is pending in view of the notice given by the Advocate for theplaintiffs and they have not responded to the notice of their Advocate.Page 5 of 12 WP 2125-2015The plaintiffs had failed to take steps, as such, the said suit has beenrightly dismissed for non-prosecution so also the application forrestoration has been rightly dismissed.8.Learned Counsel for respondents No.1 to 3 and 5 and respondentNo.4 relies upon the Judgments as under : -a)Punjab National Bank vs. Vijai Kumar Dhariwaland others, reported in (1994) 24 ALR 532 : 1993SCC OnLine All 245,b)Kamalbai w/o Narasaiyya Shrimal and Anotherrvs. Ganpat s/o Vithalrao Gavare, reported in 2007(1) Mh.L.J. 807, c)Sathy M.P. w/o N.C.Purushan Nikathithara andAnother vs. Sarasa w/o Thankappan, (R.P.497/2015),decided on 16/07/2014,d)Dattatraya s/o Laxman Misal and Another vs.govind s/o Narayan Misal and others, (Second AppealNo.593/2011), decided on 08/06/2022. Ande)Amardeep and Others vs. State of Delhi andAnr., (CRL.REV.P.573/2014 and Crl.MA.14417/2014(stay) and Crl.MA 14420/2014) decided on14/01/2015.f)Madhumati Suresh Raut and Another vs.Namdeo Tukaram Yadav, reporte din 2006 (1)Bom.C.R. 505.g)Union of India and Anr. vs. Jahangir ByramjiJeejeebhoy (D) Through his LR., Civil Appeal No.4672Page 6 of 12 WP 2125-2015of 2024 (arising out of SLP (Civil) No.21096 of 2019),decided on 03/04/2024.9.Considered the rival submissions. The question that arises forconsideration before this Court is whether the Trial Court was justified innot restoring the suit. In the instant case it is apparent that notice wasissued by RPAD by the Advocate for the plaintiffs seeking theirinstructions and to remain present in the Court. At the relevant timethe matter was listed for cross-examination of the plaintiff No.1.Plaintiff No.1 being an old aged lady and at the relevant time it iscontended that she was unwell and she did not remain present in theCourt. Ordinarily when there is no instructions pursis filed by theAdvocate, the Court would issue notice to the party. However no suchcourse of action was adopted in the instant case. The proof of service isalso not filed by Advocate for plaintiffs. The plaintiff No.2 has admittedthat he received the notice of the Advocate. However, it is not knownwhat are the contents of that notice, whether there is any indicationgiven in the notice as regards that the matter is likely to be dismissedfor non-prosecution. It has to be noticed that the plaintiffs prosecutedthe suit for 10 years diligently. Undoubtedly there are some lapses onthe part of the plaintiffs but the suit is diligently prosecuted by theplaintiffs for 10 years before dismissal for non prosecution. Plaintiffsdoes not get any benefit by delaying the proceeding. In the JudgmentPage 7 of 12 WP 2125-2015relied upon by the learned Counsel for the respondent in case of Unionof India and Anr. vs. Jahangir Byramji Jeejeebhoy (D) (Supra)the delay was substantial of 12 years and 158 days, as such the Hon’bleSupreme Court had not permitted the delay to be condoned withoutsufficient explanation for the same. The Hon’ble Supreme Court in caseof Esha Bhattacharjee vs. Managing Committee ofRaghunathpur Nafar Academy & Others, (2013) 12 SCC 649, haslaid down the parameters for condonation of delay as under :-“21. From the aforesaid authorities the principles that canbroadly be culled out are :21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with anapplication for condonation of delay, for the courts are notsupposed to legalise injustice but are obliged to removeinjustice.21.2. (ii) The terms “sufficient cause” should be understoodin their proper spirit, philosophy and purpose regard beinghad to the fact that these terms are basically elastic andare to be applied in proper perspective to the obtainingfact-situation.21.3. (iii) Substantial justice being paramount and pivotalthe technical considerations should not be given undue anduncalled for emphasis.21.4. (iv) No presumption can be attached to deliberatecausation of delay but, gross negligence on the part of thecounsel or litigant is to be taken note of.Page 8 of 12 WP 2125-201521.5. (v) Lack of bona fides imputable to a party seekingcondonation of delay is a significant and relevant fact.21.6. (vi) It is to be kept in mind that adherence to strictproof should not affect public justice and cause publicmischief because the courts are required to be vigilant sothat in the ultimate eventuate there is no real failure ofjustice.21.7. (vii) The concept of liberal approach has toencapsulate the conception of reasonableness and itcannot be allowed a totally unfettered free play.21.8. (viii) There is a distinction between inordinate delayand a delay of short duration or few days, for to the formerdoctrine of prejudice is attracted whereas to the latter itmay not be attracted. That apart, the first one warrantsstrict approach whereas the second calls for a liberaldelineation.21.9. (ix) The conduct, behaviour and attitude of a partyrelating to its inaction or negligence are relevant factors tobe taken into consideration. It is so as the fundamentalprinciple is that the courts are required to weigh the scaleof balance of justice in respect of both parties and the saidprinciple cannot be given a total go by in the name ofliberal approach.21.10. (x) If the explanation offered is concocted or thegrounds urged in the application are fanciful, the courtsshould be vigilant not to expose the other sideunnecessarily to face such a litigation.21.11. (xi) It is to be borne in mind that no one gets awaywith fraud, misrepresentation or interpolation by takingPage 9 of 12 WP 2125-2015recourse to the technicalities of law of limitation.21.12. (xii) The entire gamut of facts are to be carefullyscrutinised and the approach should be based on theparadigm of judicial discretion which is founded onobjective reasoning and not on individual perception.21.13. (xiii) The State or a public body or an entityrepresenting a collective cause should be given someacceptable latitude.22. To the aforesaid principles we may add some moreguidelines taking note of the present day scenario. Theyare:22.1. (a) An application for condonation of delay should bedrafted with careful concern and not in a haphazardmanner harbouring the notion that the courts are requiredto condone delay on the bedrock of the principle thatadjudication of a lis on merits is seminal to justicedispensation system.22.2. (b) An application for condonation of delay should notbe dealt with in a routine manner on the base of individualphilosophy which is basically subjective.22.3. (c) Though no precise formula can be laid downregard being had to the concept of judicial discretion, yet aconscious effort for achieving consistency and collegialityof the adjudicatory system should be made as that is theultimate institutional motto.22.4. (d) The increasing tendency to perceive delay as anon-serious matter and, hence, lackadaisical propensitycan be exhibited in a nonchalant manner requires to becurbed, of course, within legal parameters.”Page 10 of 12 WP 2125-2015Considering the law on subject discussed above and the facts ofthis case, it is pertinent to note that non restoration of the suit wouldcreate serious prejudice to the right of the plaintiffs, whereasrestoration of the suit will give an opportunity to the plaintiffs toestablish their case. The plaintiffs were immediately not aware of thedismissal of the suit and became aware of the same when the plaintiffNo.2 visited their Advocate on 30/09/2011. Thereafter, there is notmuch delay in filing the application for restoration of suit. The delay isnot so substantial that this Court cannot interfere. This Court canimpose certain cost for the delay caused, as such, the suit standsrestored with cost of Rs.30,000/- (rupees thirty thousand only) to bepaid to the defendants.10.It is made clear that, on restoration of the suit the plaintiffs wouldnot be entitled for further adjournment and that it would conclude itsevidence as expeditiously as possible and within nine months from thedate of this order being produced before Trial Court. The Trial Court alsoto make an endeavour to decide the suit as expeditiously as possible.11.Petition is allowed in above terms. Pending application standsdisposed of.Page 11 of 12 WP 2125-2015Rule is made absolute in above terms.( ARUN R. PEDNEKER, J. )12.After the pronouncement of the judgment, the learned counselfor the respondents prays for the judgment to be kept in abeyance toallow the respondents to approach the Hon’ble Supreme Court.13.At the request of learned Counsel for respondents, this Judgmentkept in abeyance for six weeks from today.( ARUN R. PEDNEKER, J. )vj gawade/-.Page 12 of 12