L LAKSHMI DEVI Vs. SAJIDA BEGUM

JUDGEMENT

(1.) HEARD Sri.G.V.Shashi Kumar, learned counsel appearing for appellants/applicants and Sri.N.Vasudevan, learned counsel appearing for respondents 1 to 9.

(2.) APPEAL accompanying this miscellaneous civil application is directed against Judgment and decree passed in O.S.1948/96 dated 08.09.2003 whereunder plaintiff suit for specific performance to direct defendants to execute and register sale deed in respect of suit schedule property and also for declaration to declare that plaintiff is the owner of suit property and to declare that sale deed executed in favour of defendants 9 and 10 is illegal and not binding came to be decreed partly namely directing the defendants 1 to 8 to execute and register the sale deed in favour of plaintiffs and rejecting other prayers has given cause for filing the present appeal. Since the appeal was belatedly filed namely there being a delay of 2455 days in presenting the appeal an application has been filed seeking condonation of said delay. Cause shown for the said delay is that to execute the decree in question Ex.P.2228/2005 which had been filed came to be dismissed on 31.08.2009 on the ground that decree is inexecutable and same was challenged before this court in W.P.31911/2009 and on writ petition being dismissed as withdrawn on 30.08.2010 on the strength of a memo filed by appellants/petitioners therein stating that against the decree sought to be executed an appeal in RFA 1489/2010 (present appeal) had been filed and as such delay had occasioned. It is contended that permission was granted by this court to withdraw the writ petition with liberty to challenge the order if necessary after disposal of RFA. Said liberty has been granted by Co -ordinate Bench of this court while disposing of writ petition on 30.08.2010. It is further stated in the affidavit supporting the application that on the advise of counsel execution petition was filed without preferring the present appeal and it was a result of bonafide mistake for want of due skill and view taken by learned counsel in filing the execution petition and writ petition was erroneous and such step would not have been taken by a counsel exercising reasonable skill and on account of lapse if any committed by a counsel substantial justice should not suffer. These averments made in the affidavit supporting the application would indicate that appellant is attempting to put the blame at the doors of learned counsel who has appeared on their behalf and contested the matter. Subsequently learned counsel for appellant has filed an additional affidavit with the leave of this court on 23.06.2014 whereunder it is stated by appellants that they were under a bonafide belief that they would be able to execute the decree passed by Civil Court and as such they have prosecuted the execution petition 2228/2005. They also state that they came to know or learnt about necessity to file the present appeal only when writ petition 31911/2009 was being heard and as such they have pleaded cause for delay in presenting the present appeal as a bonafide cause namely there was a delay of 2455 days which cause according to appellant is a bonafide and sufficient cause for being condoned. Hence, they seek for allowing interlocutory application and pray for condoning the delay.

(3.) PER contra Sri.Vasudevan, learned counsel appearing for respondents 1 to 9 would submit that the cause shown by appellants in filing the appeal belatedly is neither sufficient cause nor bonafide and when appellants were ably assisted by their learned advocates and when they knew that Judgment got crystalised by way of decree, still they pursued and prosecuted their cause by filing an execution petition and decree in question being inexecutable as rightly held by Executing Court they cannot be heard to contend now at this length of time that they could not prefer appeal in time and the delay occasioned was bonafide. Hence, he prays for rejection of the present application. While considering the application for condonation of delay it is not the length of delay which requires to be considered by this court but the cause shown i.e., acceptance of sufficient cause and this court will have to examine as to whether the cause shown would entitle the applicants for the relief of condoning the delay or not. It is no doubt true that no litigant would stand to benefit in approaching the court belatedly. However, the cause which the applicant intend to explain as 'sufficient cause' will have to be examined within the scope as to whether it would constitute 'sufficient cause' or not. If the cause shown is sufficient and such plea is within the proximity of truth or in other words if applicants were prevented by bonafide cause in not prosecuting their case, length of delay recedes to background. However, when delay is inordinate and unexplained or even if explained does not stand test of scrutiny then such delay cannot be condoned. In the given circumstances of the case such cause cannot be held or construed as 'sufficient cause' to condone the delay. The Hon'ble Apex Court in catena of Judgments has held that substantial justice has to yield to technicalities. It is not required that delay has to be explained with mathematical or arithmetical precision. If the cause shown is sufficient it would yield to substantial justice and when the technicalities is pitted against substantial justice the technicalities will have to take a back seat. On the ground of delay the larger relief to which the litigant may be entitled cannot be deprived of. At the same time this court cannot loose sight of the fact that delay disentitles such relief on the ground that 'delay defeats equity'. The Hon'ble Apex Court in the Judgment of Collector, Land Acquisition, Anantnag and anr Vs Master Katiji and others, 1987 AIR(SC) 1353has explained the contours under which the aspect of delay is required to be considered by the courts. The Hon'ble Apex Court in the said judgment has held as under: