Shri Felix D'' Souza vs Village Panhayat of Morjim and Addl. Director of Panchayats-II

F.M. Reis, J.—Rule.

Heard forthwith with the consent of the parties.

The present Petition has been filed challenging the Judgment and Order dated 16.12.2009, passed by the Respondent No. 3, whereby the application for condonation of delay filed by the Petitioner to condone the delay of four months 15 days in preferring an Appeal bearing No. 225/2009, came to be dismissed. It is the case of the Petitioner that he was diligently following the proceedings and on account of his residence in Mumbai, he was not informed immediately about the impugned Order passed by the Respondent No. 1 dated 15.06.2009. It is further his contention that he has an old mother who resides in the house and considering her old age, she did not communicate about the said Order to the Petitioner. It is further his contention that immediately after he came to know about the said Order passed by the Respondent No. 1, he took necessary steps to prefer the Appeal before the Respondent No. 3.

The Respondent Nos. 1 and 2 did not contest the application for condonation of delay and made an endorsement to the effect that they submit to the Orders of the Court.

It is apparent that the allegations made by the Petitioner in the application for condonation of delay came to be admitted by the Respondent Nos. 1 and 2. There was no reason for the Respondent No. 3 to disbelieve the version given by the Petitioner in the application for condonation of delay. The law is well settled that preferably the Court should decide the matter on merits and not shut the door of the appellant at the threshold. The primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. There is no evidence on record to show that the Petitioner could be labelled as an irresponsible litigant or was lacking any bonafides. The affidavit of the Petitioner though discloses that he appears not to be as vigilant as he ought to have been yet his conduct does not on the whole warrant to castigate him as an irresponsible litigant. The learned Counsel appearing for the Respondent No. 3 fairly did not dispute that there was no lack of bonafides or diligence on the part of the Petitioner on the basis of the evidence on record.

Considering the facts and circumstances of the case and having heard the learned Counsel, I find that the Respondent No. 3 was not justified in dismissing the application for condonation of delay on the ground that the Petitioner was negligent when, on the contrary, there was nothing on record to show lack of diligence on the part of the Petitioner or that the Petitioner deliberately delayed in filing the Appeal. The impugned Order dated 16.12.2009, as such, cannot be sustained and deserves to be quashed and set aside and the application for condonation of delay deserves to be granted.

As such, the Judgment and impugned Order dated 16.12.2009 is quashed and set aside. The application for condonation of delay filed by the Petitioner dated 30.11.2009 is allowed. The Respondent No. 3 is directed to dispose of the Appeal No. 225/2009 as well as the application for stay as expeditiously as possible and in any event preferably on or before 31.01.2010.

Rule is made absolute in the above terms with no Order as to costs.