Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 2628/19 in S.C.Suit No. 643/07. 1 Order.
MHCC010072102019
Presented on : 15-07-2019
Registered on : 15-07-2019
Decided on : 18-02-2023
Duration : 3 years, 7 months, 3 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2628 OF 2019
IN
S. C. SUIT NO. 643 OF 2007
Mrs. Sharda Janardan Kamble )...Plaintiff
Versus
Chandrakant Anandrao Lokhande )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 18th FEBRUARY, 2023.
Smt. Ranjana Jagdale, Advocate for the plaintiff.
None for the defendant.
ORDER
1. The plaintiff has taken out the notice of motion for
condoning delay of 11 years 28 days and for restoration of Suit
No.643/2007. Perused the notice of motion and the suit proceeding.
Heard learned counsel Ranjana Jagdale for the plaintiff.
2. It is contention of the plaintiff that she had filed the suit for
declaration and injunction. The plaintiff is an absolute owner as well as
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N/m No. 2628/19 in S.C.Suit No. 643/07. 2 Order.
lawful possessor of the suit premises. The plaintiff had prayed for
seeking the relief of injunction for restraining the defendant from
parting with possession or transferring and alienating or inducting any
thirdparty rights in the suit premises. Short Cause Suit No.643/2007
came to be dismissed for default on 28/03/2008. The suit was filed on
13/02/2007. Appeal from Order No.357/2007 was filed in the
Honourable High Court against refusal of adinterim injunction by this
court and it was disposed of on 09/07/2007 by the Honourable High
Court. The defendant had committed a breach of the order granted by
the Honourable High Court. Therefore, the plaintiff had filed a
Contempt Petition No.332/2007 in the Honourable High Court on
05/09/2007. The matter appeared on board on 14/09/2007,
11/10/2007 and 20/10/2007 wherein the parties have been granted
time to explore the possibilities of settlement. Since the defendant has
shown a willingness to settle the matter, time was sought in the matter.
Thereafter, the defendant had continuously committed for a settlement
in the matter and informed that the parties will not pursue the suit any
more. On his commitment, the plaintiff waited for his decision and she
did not contact her advocate. Thereafter, the advocate for the plaintiff
had not appeared in the matter for want of instructions. Therefore, the
matter was dismissed on 28/03/2008 and it was not within the
knowledge of the plaintiff.
3. The plaintiff had awaited decision of the defendant to settle
the matter and she waited years together because the defendant had
come in good terms with the plaintiff. Contempt Petition No.332/2007
had already been filed on 05/09/2007 and the same was on the board
before the Honorable High Court wherein the advocate did inform the
Court about the matter and its facts on 06/06/2008 and 20/06/2008
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N/m No. 2628/19 in S.C.Suit No. 643/07. 3 Order.
when the matter appeared on the board. Advocate for the plaintiff was
also not aware about the fact that the matter has been disposed of by
this Court on 28/03/2008. Honourable High Court had issued notices,
but the same was not within the knowledge of the plaintiff. The plaintiff
was not in contact with the advocate on the record. Even at the relevant
time, the plaintiff was not in contact with the advocate. Hence,
Contempt Petition No.332/2007 was also dismissed for noncompliance
of conditional order dated 18/07/2008. The matter gets dismissed for
default by keeping the plaintiff in dark under the influence of
settlement. Recently, the plaintiff came to know that the defendant died
on 25/02/2017.
4. The plaintiff was under the impression that the advocate on
record is attending the matter regularly and he is taking care of the
matter. The advocate had not pursued. Neither the advocate nor the
defendant informed the plaintiff about dismissal of the matter. The
plaintiff could not contact her advocate due to her health issues.
Whenever the plaintiff asked her advocate, he informed her that the
proceedings are going on. Hence, she was relaxed. After hearing the
news of the defendant's death, she had called the advocate on record
and asked about the development in the suit. However, he had
informed that for want of instructions as to settlement, he did not
appear further in the matter because he thought that the matter has
been settled. He advised the plaintiff to take out the papers from the
court and to take steps in the matter. The plaintiff applied for certified
copies on 12/02/2019 and received the same on 04/03/2019. Then,
she came to know that the suit has been dismissed for default on
28/03/2008. Therefore, the plaintiff filed the present notice of motion
seeking reliefs as mentioned above.
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N/m No. 2628/19 in S.C.Suit No. 643/07. 4 Order.
REASONS
5. Learned counsel Ranjana Jagdale for the plaintiff advanced
arguments as per averments made in affidavit in support. She also
relied upon observations of Hon'ble Supreme Court in paras 9, 11 and
12 in the case of N. Balakrishnan V/s. M. Krishnamurthy AIR 1998
Supreme Court 3222. It is observed in this case in para 9 as under :
“9. It is axiomatic that condonation of delay is a
matter of discretion of the Court. Section 5 of the
Limitation Act does not say that such discretion
can be exercised only if the delay is within a
certain limit. Length of delay is no matter,
acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range
may be uncondonable due to want of acceptable
explanation whereas in certain other cases delay
of very long range can be condoned as the
explanation thereof is satisfactory. Once the Court
accepts the explanation as sufficient it is the result
of positive exercise of discretion and normally the
superior Court should not disturb such finding,
much less in revisional jurisdiction, unless the
exercise of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is a
different matter when the first Court refuses to
condone the delay. In such cases, the superior
court would be free to consider the cause shown
for the delay afresh and it is open to such superior
Court to come to its own finding even
untrammeled by the conclusion of the lower
Court.”
6. She also relied upon observations in para 3 in the case of
Collector, Land Acquisition, Anantnag and another V/s. Mst. Katiji
and others AIR 1987 Supreme Court 1353 which reads as under :
“3. The legislature has conferred the power to
condone delay by enacting S. 51 of the Indian
Limitation Act of 1963 in order to enable the
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N/m No. 2628/19 in S.C.Suit No. 643/07. 5 Order.
Courts to do substantial justice to parties by
disposing of matters on 'merits'. The expression
“sufficient cause” employed by the legislature is
adequately elastic to enable the Courts to apply the
law in a meaningful manner which subserves the
ends of justice that being the lifepurpose for the
existence of the institution of Courts. It is common
knowledge that this Court has been making a
justifiably liberal approach in matters, instituted
in this Court. But the message does not appear to
have percolated down to all the other Courts in the
hierarchy. And such a liberal approach is adopted
on principle as it is realized that :
1 “Any appeal or any application, other than an
application under any of the provisions of O. XXI
of the Code of Civil Procedure, 1908, may be
admitted after the prescribed period if the
appellant or the applicant satisfies the Court that
he had sufficient cause for not preferring the
appeal or making the application within such
period.”
1. Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest
that can happen is that a cause would be decided
on merits after hearing the parties.
3. “Every day's delay must be explained” does not
mean that a pedantic approach should be made.
Why not every hour's delay. every second's delay ?
The doctrine must be applied in a rational
common sense pragmatic manner.”
7. By relying upon these observations, she submitted that
length of delay is not relevant consideration and it can be liberally
condoned. She also contended that the plaintiff was suffering with
various ailments at the relevant time of dismissal of the suit.
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N/m No. 2628/19 in S.C.Suit No. 643/07. 6 Order.
8. If submissions of advocate Ranjana Jadgale are considered
in the context of factual aspect of the matter, it is clear that the plaintiff
has come up with specific contention that she had settlement talks with
the defendant and she was anticipating compromise in the matter.
Therefore, the plaintiff did not feel it necessary either to contact her
advocate or to attend the suit proceeding. The plaintiff realized only
after death of the defendant that it is not only end of life of the
defendant but also the end of possibilities of settlement. Therefore, she
felt it necessary to approach the Court for condoning delay and
restoration of the suit after death of the defendant on 25/02/2017. In
short, the plaintiff was expecting from the Court to keep her matter
pending for years together in anticipation that the plaintiff and the
defendant would approach the Court with proposal of settlement or
with request to proceed ahead in the matter. Very expectation of the
plaintiff without any adjournment application is unreasonable. If the
suit proceedings are kept pending for years together by expecting some
sort of response on the part of the parties, stale and ineffective matters
would have to be kept pending unnecessarily for many years. As the
plaintiff herself was reluctant in prosecuting the suit proceeding, she is
not justified in blaming her advocate for not attending the Court
proceeding. For this reason, observations in the case of N. Balakrishnan
(cited supra) are not applicable to the case in hand. Delay is not only
inordinate but also not explained in proper manner.
9. Even otherwise, the plaintiff has sought relief of declaration
and injunction. The plaintiff had cause of action to prosecute the suit
proceeding against the defendant for seeking these two reliefs. Cause of
action does not subsist to implead LRs of the defendant and to continue
the suit proceeding against them. Therefore, restoration of the suit is
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N/m No. 2628/19 in S.C.Suit No. 643/07. 7 Order.
also not justified on this additional ground. For all these reasons, I pass
the following order :
ORDER
1. Notice of Motion No. 2628/2019 is dismissed.
2. Proceeding of N/m No. 2628/2019 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 18/02/2023. Mumbai.
1. Dictated on : 18/02/2023.
2. Transcribed on : 18/02/2023.
3. Checked and Signed on : 20/02/2023.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/02/2023. 1.45 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 18/02/2023.
Judgment/Order signed by P.O. on 20/02/2023.
Judgment/Order uploaded on 20/02/2023.
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