Evaristo Luciano Pinto (Dec) Thr. Lrs. And ANR v. Roghunath Jaganath Sardessai (Dec) And 20 ORS

Amrut

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 70 OF 2022 AND CIVIL APPLICATION NO. 82 OF 2022 1 Shri Evaristo Luciano Pinto, Landlord, major, married, 75 years of age, Resident of H.No.361, Marra, Pilerne, Bardez Goa.

(Since deceased through LR's) 1a) Mr Mathew Anthony Chrispiano Pinto Aged 68 years and his wife, POA of 1(b) & 2.

(Since deceased through LR Resp. No.1b.) 1b) Mrs. Grace Jacinto Pinto, Aged 61 years, Both residing at Marra, Pilerne, Bardez Goa.

2 Smt. Dores Antonieta Pinto (deceased) Through LR's 1(a) and 1(b), 64 years of age, Wife of Appellant No.1, Resident of H.No.361, Marra, Pilerne, Bardez Goa.

...... Appellants

Versus

1 Shri Roghunath Jaganath Sardessai (deceased) 2 Mrs. Sunanda Raghunath Sardessai, (widow of the Respondent No.1) Resident of Mumbai, Through her POA i.e. D-10.

3 Mrs Vidya G. Herekar, Married to Guirish Herekar, Both major of age, Resident of Mumbai, 4 Rajesh Roghunath Sardessai, Both majors, resident of Mumbai.

5 Abhijit Roghunath Sardessai, Married to Smruti Abhijeet Sardessai, Both majors, residents of Mumbai, 6 Shradha Gurunath Nayak, Married to Gurunath Nayak, Both residents of Mumbai, Presently at Japan.

7 Shri Shridhar Balkrishna Shenvi Bhobe (expired), r/o Saipem, Candolim, Bardez Goa.

8 Smt. Indrabai Sinai Bhobe (expired), Both represented by legal representatives of Respondents 7 and 8 8a) Shri Kamlaker Shridhar Bhobe, Son of deceased Respondent No.7 8b) Smt. Sumetra Kamlakar Bhobe, Wife of Kamlakar Bhobe, Both residents of Saipem, Candolim, 8c) Mrs Sushma Suresh Shanbhag, Daughter of Respondent No.7 8d) Mr Suresh Shanbhag, Both residents of Saipem, Candolim, 8e) Miss Mangala Shridhar Bhobe, Daughter of Respondent No.7 Residents at Saipem, Candolim,

9 Smt. Dwarkabai Usno Sinai Bhobe, Since deceased represented by heirs, Respondent Nos. 10 to 20.

Widow of Usno Shankar Bhobe, Residing at Nerul, Bardez Goa.

10 Shri Govind Usno Sinai Bhobe, POA for Defendant No.1 to 6 11 Smt Mangala Govind Sinai Bhobe, Wife of Respondent No.10, Both residents of Nerul, Bardez.

12 Shri Vasudev Usno Sinai Bhobe, 13 Smt. Prabhat Vasudev Sinai Bhobe, Wife of Respondent No.12, Both resident of Nerul, Bardez.

14 Shri Ganesh Usno Sinai Bhobe, Since deceased, represented by his Legal heirs, 14a) Smt. Sudha Ganesh Bhobe, 14b) Gautam Ganesh Bhobe, 14c) Veena Gautam Bhobe, All residents of Nerul, Bardez 15 Smt. Sarojani Dalvi, Daughter of Usno Bhobe, Resident of Nerul, Bardez Goa.

16 Shri Shyam K. Dalvi (since deceased) Represented by legal heirs;

16a) Bharati Kamat, Daughter of Respondent No.15, 16b) Rajan Kamat, Both residents of Nerul, Bardez, 16c) Raju Dalvi, Son of Respondent No.15,

16d) Suchetra Raju Dalvi, Both resident of Nerul Bardez.

16e) Sangeeta Kamat, Daughter of Respondent No.15, 16f) Vivek Kamat, r/o Nerul Bardez 16g) Sanjeev Dalvi, Son of Respondent No.15, 16h) Monica Dalvi, Both resident of Nerul, Bardez.

17 Smt. Shanta V. Palang, Daughter of Usno Bhobe, 18 Shri Vasudev N. Palang Husband of Respondent No.17, Both residents of St. Cruz, Ilhas Goa.

19 Shri Devidas Usno Sinai Bhobe, Unmarried, resident of Nerul, Bardez Goa.

20 Mrs Yeshsavni G. P. Poi, Wife of Respondent No.21 (since deceased through her legal heirs) 20a) Shri Mahesh Gajanan Poi, Major, unmarried, son of deceased Respondent No.20, r/o Bhosule Sadan, Ambedkar Path, Bombiwali West, (Vishnu Nagar) Thana, Bombay.

21 Shri Gajanan Pandurang Poi, Husband of Respondent No.17, Both residents of Bhosule Sadan, Ambedkar Path, Bombiwali West, (Vishnu Nagar) Thana, Bombay.

......Respondents

Mr Gaurish Agni and Mr K. Kavlekar, Advocates for the Appellants. Mr Tarun Rebello and Mr Kabir Sabnis, Advocates for Respondent Nos. 2, 3, 4, 5, 6 and 10.

CORAM:

M. S. SONAK, J.

DATED:

19th AUGUST 2023 ORAL JUDGMENT

1 (1998) 7 SCC 123 2 (2013) 12 SCC 649

₹3,00,000/- to the Respondents. The imposition of such costs is absolutely necessary if any indulgence has to be extended to the Appellants because the Appellants must not be permitted to question the trial Court's decree after a delay of 256 days, by simply coming up with a case that the Advocate they engaged was too busy to institute the appeal within some reasonable period. Even if some indulgence is to be shown to the Appellants because from their side they took steps to engage an Advocate to institute the appeal. Such indulgence can obviously, not be at the cost of the Respondents.

The record shows that the Respondents instituted suit in the year 1994. The same was decreed only in the year 2016. At least prima facie, it is the Appellants who are responsible for the delay. The Appellants filed frivolous applications and after they were dismissed with costs, did not even bother to pay such costs. Such conduct is relevant for determining the quantum of costs that the Appellants must now pay to the Respondents if the delay is to be condoned.

The decree was made in 2016, almost 22 years after the institution of the suit. Till date, the Respondents have not got the fruits of their decree. At least if the appeal were to be instituted within the prescribed

period of limitation or within some reasonable period from the expiry of the period of limitation, the appeal would have been disposed of one way or the other. It is almost seven years since the Respondents have secured a decree in their favour, but the Respondents have deprived the fruits of such a decree. On cumulative consideration of all such factors, indulgence can be extended to the Appellants subject to payment of costs of ₹3,00,000/- within six weeks from today.

Even in N. Balakrishnan Vs M. Krishnamurthy (supra), the Hon'ble Supreme Court has held that in every case of delay, there can be some lapse on the part of the litigant concerned. As long as there is no material to show that the delay was occasioned by the party deliberately to gain time then the court should lean in favour of acceptance of the explanation. However, 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 large litigation expenses. Therefore, it should be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court must compensate the opposite party for the loss.

Right of an appeal is a valuable right. The Appellants should have at least one opportunity to question the trial Court's decree on merits. As noted above, the conduct of the Appellants though leaves much to be desired, was not such as to castigate the Appellants wholly irresponsible. Some efforts were made by the Appellants to institute the appeal within a reasonable period. The delay in this case is of 256 days. However, if all circumstances are considered, a case is made out to condone the delay

subject to no doubt payment of substantial costs to compensate the Respondents.

For all the above reasons, the substantial questions of law as framed are answered in favour of the Appellants.

The impugned order is set aside only conditionally. The delay of 256 days in instituting the appeal against the judgment and decree dated 02.12.2016 is condoned subject to the Appellants depositing before the Appeal Court an amount of ₹3,00,000/- within six weeks from today. Liberty to the Appellants to apply for interim relief before the Appeal Court after the deposit of the amount as directed above within six weeks from today. If this amount is not deposited within six weeks then, the Appellants will not have the benefit of condonation. In that case, this Second Appeal shall be deemed to have been dismissed with costs of ₹50,000/-. It is necessary to impose such costs because the Appellants have in a way succeeded in depriving the Respondents of the fruits of their decree for the last seven years.

However, if the amount of ₹3,00,000/- is deposited before the Appeal Court within six weeks from today then the delay in instituting the appeal shall stand condoned and the Appeal Court is directed to dispose of such appeal as expeditiously as possible and in any case within six months from the date of such deposit.

If the amount is deposited, the Respondents shall be at liberty to withdraw the same from the First Appellate Court.

The appeal is allowed subject to payment of the amount as aforesaid within six weeks from today. If this amount is not deposited within six weeks then, the Appellants will not have the benefit of condonation. In that case, this Second Appeal shall be deemed to have been dismissed with costs of ₹50,000/-. The executing Court must then execute the decree expeditiously, and in any case, within six months from the decree holders applying for the same.

All concerned to act on the basis of the authenticated copy of this order.

The Civil Application No. 82 of 2022 does not survive the disposal of the appeal and the same is also disposed of accordingly. M. S. SONAK, J.

Date: 2023.08.22 10:43:32 +05'30'

TARI AMRUT NAGESH