The Mumbai Municipal Corporation Of Greater Mumbai And ORS. v. Harish Shambulal Hariani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.974 OF 2015 IN FIRST APPEAL ST.NO.21291 OF 1998 Mumbai Municipal Corporation of Gr. Mumbai & Ors.
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Applicants -VersusHarish Shambulal Hariani & Anr.
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Respondents Mr.N.V.Walawalkar, Senior Advocate with Mrs.Surekha Sonawane for Corporation Mr.Sunil for respondent No.1.
CORAM
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K.K.TATED, J.
DATE :
20th March 2015.
P.C.
1] Heard the learned Counsel for the parties.
2] The learned Advocate appearing on behalf of respondents states that he has filed his vakalatnama on behalf of respondents, without taking "No Objection" from earlier Advocate, who had filed vakalatnama on 10th January 2002. The learned Advocate for respondents undertakes to file No Objection of earlier Advocate on record within one week from today. Undertaking accepted.
2] This application is preferred by the Municipal Corporation for restoration of civil application No.56 of 2001 and First Appeal St.No.21291 of 1998.
3] Learned Senior Counsel, Mr.Walawalkar appearing for applicants submits that this Court by an order dated 7th February 2011 directed the applicants to bring legal heirs of respondent No.2 on record within six months, failing which the matter was to stand dismissed for non prosecution without reference to court. He submits that the first appeal memo on record shows that they filed the first appeal against only one respondent only i.e. Harish S. Hariani. Therefore, there was no question of bringing the legal heirs on record of respondent No.2. He submits that thereafter, the matter appeared before the Court on 28th March 2011. That time, this Court (A.S.Oka, J) passed an order dismissing the civil applications for non prosecution.
4] Learned Senior Counsel submits that there was no question of bringing legal heirs on record of respondent No.2. But those facts
were not properly placed before this Court by their Advocate. Hence, in the interest of justice, this Court be pleased to allow the present civil application and restore the civil applications and first appeal. He submits that the delay in preferring the civil application be also condoned.
5] On the other hand, the learned Counsel Mr. More, appearing for respondents vehemently opposed the present civil application. The affidavit in reply has been filed dated 20th March 2015. He submits that the applicants have not shown sufficient cause for condonation of more than three years delay in preferring the civil application. He submits that time and again the respondent has written letters to the appellants - Corporation for complying with the order passed by the Small Causes Court. He submits that when they had written letters dated 5th January 2015 to the applicants, they preferred the civil application for restoration of civil application as well as the first appeal. He submits that in the interest of justice, this Court be pleased to dismiss the present civil application. 6] I have heard both the sides at length. I have gone through the
appeal memo filed by Corporation. There is only one respondent by name Harish Hariani. Therefore, there was no question of bringing the legal heirs of the second respondent on record as per the order dated 7th February 2011. The Apex Court in the matter of It is to be noted that the Apex Court in the matter of N.Balkrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 held that the object of fixing the time limit is not meant to destroy the rights. The law of limitation fixes a lifespan for such legal remedy for the general welfare. Paragraph Nos.11, 12 and 13 of the said judgment read thus : "11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties.
They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. 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" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
7] Considering the submissions of the learned Senior Counsel for the applicants, the averments made in the civil application and the law declared by the Apex Court, I am satisfied that the applicants have made out a case for allowing the civil application, provided they pay costs quantified at Rs.15,000/- to the respondent within four weeks from today, failing which the civil application shall stand dismissed without further reference to the court. Hence, the
following order:- (a) The delay in filing first appeal is condoned; (b) Civil Application No.56 of 2001 with First Appeal St.No.21291 of 1998 is restored to file;
(c) The applicant Corporation to pay cost of Rs.15,000/- to the respndent or his Advocate within four weeks from today, failing which the civil application shall stand dismissed without further reference to the court;
(d) After payment of costs, office is directed to place Civil Application No.56 of 2001 on board for hearing on its own merits. (e) C.A. disposed of accordingly.
( K.K.TATED, J.)