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U.D. Salvi, J.—The petitioner, Smt. Christalina Rodrigues, the original plaintiff in RCS No.70/79/A instituted in the Court of the C.J.S.D., Ponda for possession, mandatory and permanent injunction, is seeking quashing of the order dated 7.7.2009 passed by District Judge-1 in C.M.A. No.75/2009 for condoning the delay in preferring the appeal against the judgment and decree passed in the said suit against the original defendant Nos. 6 and 7 therein under Order 12 Rule 6 of C.P.C., 1973. At the outset, exception was taken to the maintainability of this petition in view of availability of an alternative efficacious remedy of revision u/s 115 of C.P.C. The petitioner without any hesitation conceded to the said exception and prayed for conversion of this petition into a revision application. Prayer was allowed and parties were heard with reference to the copies of the material record annexed to the petition.
Facts leading to the present writ petition are as under :
The petitioner had instituted the aforesaid suit for removal of the suit structure/ gado allegedly constructed by the defendants in September,1979. The respondents herein including the initially impleaded respondent Nos. 3 to 7 were defendants in the said suit. The respondents/ defendant Nos. 1 and 2 took plea that suit structure/ gado was a store room meant for storage of agricultural implements as they were agricultural tenants holding the suit property. The defendant nos. 6 and 7 claimed to be mundkars in respect of the suit structure. Issues as to the right of tenancy and mundkarial rights were framed in light of the claims made by the defendants in the said suits and the same were referred to the Mamlatdar for decision according to law. The Joint Mamlatdar of Ponda after conducting enquiry arrived at the finding that the defendant Nos. 6 and 7 were not mundkars. However, it appears, the claim to the tenancy made by the defendant Nos. 1 and 2 is pending adjudication by the Mamlatdar.
The petitioner moved an application before the C.J.S.D. under Order 12, Rule 6 of C.P.C. for decreeing the suit as against the defendant Nos. 6 and 7 in view of the finding of the Joint Mamlatdar, Ponda rejecting the claim of the defendant Nos. 6 and 7 to the mundkarial rights in respect of the suit structure. This application was duly allowed, and decree for possession and removal of the suit structure came to be passed against the defendant Nos. 6 and 7 in the said suit on 02.04.2007. Execution application No.7/2008/C for execution of the said decree was moved against the defendants including the present respondents. The respondents/ defendant Nos. 1 and 2 in the said suit resisted the execution of the said decree vide reply dated 16.08.2008. Learned C.J.J.D., Ponda dismissed the objections raised by the respondent Nos. 1 and 2 vide order dated 13.01.2009 passed in the execution proceedings and directed the respondent Nos. 1 and 2 to file compliance report. Thereupon, the respondent Nos. 1 and 2 preferred a Civil Revision Application bearing No.4/2009 before this Court against the order dated 13.01.2009. This revision application came to be dismissed on 3/3/2009. Aggrieved by the order of dismissal of the said revision application, the respondent Nos. 1 and 2 approached the Hon''ble Apex Court in S.L.P., which also came to be dismissed on 13/04/2009.
Upon being made aware about the orders of the Hon''ble Apex Court, the respondent No.1 Rama Naik aged about 85 years fell ill and took to bed on the advice of his Doctor between 22.4.2009 and 29.05.2009. In the meantime, certified copy of the order and decree dated 2.4.2007 was obtained and appeal against the same was preferred in the Court of the District Judge, North Goa, at Panaji along with an application for condonation of delay in filing the said appeal being C.M.A. No.75/2009.
The respondent Nos. 1 and 2 contended that they bonafidely believed that no execution would lie against them as the order dated 2.4.2007 was passed against the defendant Nos.6 and 7, and based on the legal advice they did not challenge the said decree dated 2.4.2007 at that time. Initially, the respondent Nos. 1 and 2 contend, they bonafidely pursued revision and SLP against the orders passed by the executing Court and thereafter on the legal advice, had preferred an appeal against the said order and decree along with the delay condonation application in the Court of District Judge, North Goa at Panaji.
The learned District Judge-1, Panaji after hearing the parties and upon considering the grounds raised in the application as well as reply proceeded to condone the delay vide impugned order dated 7.7.2009. Costs of Rs.1,000/- were awarded to the contesting respondent /petitioner herein.
The learned Advocate Lotlikar for the petitioner / plaintiff submitted that long delay of 2 years and 36 days made in preferring the appeal against the lawful decree has been condoned upon wrong exercise of discretion on wholly untenable grounds arbitrarily. He submitted that particulars as to who gave advice and what advice was given initially to the respondent Nos.1 and 2 for resisting the execution application and, thereafter, for preferring revision and SLP against the order/s passed therein, and later on for preferring the appeal against the said order and decree before the District Judge, North Goa, Panaji, were conspicuously absent in the application for condonation of delay and as such the application lacked bonafides. He further submitted that the respondent Nos. 1 and 2 in order to deprive old petitioner/ plaintiff of the fruits of the lawful decree passed in the said suit have deliberately taken recourse to the strategy of contesting the execution proceedings right upto the Apex Court and thereafter to take recourse to the appeal before the District Judge, North Goa, Panaji under the specious plea of mistake in law. Such unfair and malafide design of the respondent Nos. 1 and 2, he submitted, needs to be frustrated by quashing the impugned order passed by the District Judge, North Goa, Panaji.
Learned Advocate Nachinolkar for the respondent Nos. 1 and 2 pointed out from the para No.4 of their application for condonation of delay the reference to the trial advocate on whose advice the respondent Nos. 1 and 2 were persuaded to contest the execution application right up to the Apex Court. According to him, he was the Advocate of the respondent Nos. 1 and 2 later on. He submitted that the respondent Nos. 1 and 2 are illiterate persons, who were incapable of devising any strategy and adopt means to contest or defend themselves in the execution initiated not only against the defendant Nos. 6 and 7 but against them as well. He further pointed out from the record that reply to the delay condonation application did not specifically speak about the malafides as sought to be stamped on the respondent Nos. 1 and 2 through the submissions made on behalf of the petitioner. Relying on the judgments reported in N. Balakrishnan Vs. M. Krishnamurthy, and Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, , he urged the Court to be liberal and free of pedantic or hyper technical attitude in construing the provisions of Section 5 of the Limitation Act for giving meaning to the words ''sufficient cause'' while answering the issue of condonation of delay. He submitted that the respondent Nos. 1 and 2 were also old and were as eager as the petitioner to see end of the controversy. He further submitted that the Court may not presume that delay in approaching the Court is deliberate and there is nothing to show that there was deliberate attempt on the part of the respondent Nos. 1 and 2 in delaying the proceedings. He, therefore, urged this Court not to disturb the finding of the District Court arrived as a result of positive exercise of discretion.
The Hon''ble Apex Court in clear terms observed thus in N. Balkrishnan''s case (supra) :
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 not matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a 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 untrammelled by the conclusion of the lower court.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. Kuntal Kumari and State of W. B. v. Administrator, Howrah Municipality.
In the instant case, the learned District Judge has duly considered the plea for condonation of delay in preferring the appeal on the ground of mistake in law and sickness and accepted the said grounds as sufficient. Certainly, the grounds taken are not untenable. The delay condonation application refers to advice given by the Trial Court Advocate in following terms :
Since decree was against the original defendant Nos. 6 and 7, the appellants (respondent Nos. 1 and 2) were advised by their Lawyer that the same would not affect their rights/ defence taken in the suit.
Normally, the litigants are novices in the field of law and most oftenly pursue legal remedies on the advice they get. There is no material before this Court to suggest that the respondent Nos. 1 and 2 were exception to this situation. Considering human nature, one can see that no individual howsoever he is crooked, would resort to a strategy of initially taking recourse to wrong path and thereafter switch over to correct path at the risk of loosing the path on account of delay only for the tactical purpose of prolonging the legal battle. As pointed out rightly, the reply to the delay condonation application does not make utterance of such strategy adopted by the respondent Nos. 1 and 2 except a bald statement that there was absolutely no good faith/ bonafide on the part of the applicants. Reply to the delay condonation application is not supported by sworn statements. In such scenario, the acceptance of the explanation or ground for condonation of delay as ''sufficient cause'' by the learned District Judge cannot be said to be perverse or arbitrary.
It has been pointed out by the learned Advocate Lotlikar for the petitioner from the order dated 13.1.2009 passed by the learned C.J.J.D.Ponda in the execution proceedings that the suit structure/ gado was turned into provision stores and was not used for storing agricultural implements. Only for such observation in the order rejecting the objections to the execution application, it would not be proper to rush to the conclusion that delay in approaching the Court is deliberate. In the words of the Apex Court, the refusal to condone delay would result in foreclosing the suitor i.e. the respondent Nos. 1 and 2 from putting forth their cause. If there is legal remedy not availed of due to bonafide mistake, it must be made available to the suitor/s. However, considering the ages of the parties, it is just and necessary to expedite the hearing and disposal of the appeal preferred against the order and decree dated 2.4.2007 passed in the aforesaid civil suit. No interference in the impugned order condoning the delay is, therefore, called for. The revision application/ petition is rejected with no order as to costs. The learned District Judge-1,North Goa, Panaji shall hear and dispose off Regular Civil Appeal preferred against the order and decree dated 2.4.2007 passed in RCS No.70/1979/A/D by the learned C.J.S.D., Ponda preferably on or before 30th April, 2010.