SIRAJ SHAIKH Vs. VERONICA GONSCDVES MENEZES

JUDGEMENT

(1.) By this petition, the petitioner challenges the order dated 20-11-2004, passed by the 1st ad hoc Addl. District Judge, Panaji in civil Misc. Application No. 310/2004, dismissing the application for condonation of delay filed by the petitioner. Heard Mr. Tamba for the petitioner and Mr. Rodrigues for the respondent.

(2.) The petitioner is the original defendant in Regular Civil Suit No. 16/ 2000/c filed by the respondent in the Court of Civil Judge, Jr. Division at panaji. An ex parte decree was passed by the trial Court on 31-10-2002, directing the defendant to vacate and hand over possession of the suit premises to the plaintiff within three months. The defendant was further directed to pay to the plaintiff mesneprofits at the rate of Rs. 5,000/- per month from 1-2-2000 till the defendant is evicted and the vacant possession of the suit premises is handed over to the plaintiff. The defendant was also directed to pay arrears to the tune of Rs. 25,000/ -. Against the ex. pa. rte decree passed, an application for setting aside the decree along with an application for condonation of delay was filed by the petitioner. The trial Court condoned the delay, but refused to set aside the ex parte decree holding that no sufficient cause was made out for setting aside the ex parte decree. The trial Court passed the order dated 3-10-2003, refusing to set aside the ex parte decree. The plaintiff filed execution application No. 4/2003 for execution of the decree passed in her favour. In the execution application, several applications were filed by the original defendant, inter alia, contending that the parties had settled the matter amicably and in the course of the said proceedings, Rs. 2,00,000/- were paid. It is the case of the petitioner that in all he had paid Rs. 2,88,000/-to the respondent herein. According to the petitioner, the amount was accepted by the respondent in view of the settlement arrived at between the parties and since the matter was settled between the parties, the petitioner did not prefer an appeal against the order dated 3-10-2003, refusing to set aside the exparte decree. According to the petitioner, since at one stage the respondent backed out of the settlement, he preferred the appeal against the order dated 3-10-2003, along with the application for condonation of delay of 173 days in filing the appeal. By the impugned order, the Appellate Court has dismissed the application, holding that the petitioner herein has failed to show sufficient cause for condoning the delay and further holding that the application suffers from gross delay and exhibits negligence on the part of the applicant. The petitioner assails the said order passed by the Appellate Court.

(3.) Mr. Tamba, the learned Coursel appearing for the petitioner has submitted that the Appellate Court has exercised jurisdiction illegally while passing the impugned order. He has further submitted that the Appellate Court has failed to take into consideration the principles laid down by the Apex Court in the matter of condonation of delay and further submitted that the impugned order is patently illegal. The learned Counsel further submitted that since the Appellate court was dealing with an application for condonation of delay, the approach of the Court ought to have been liberal and considering the principles laid down by the Apex Court and this Court in several judgments, the Appellate Court ought to have condoned the delay and ought to have given an opportunity to the petitioner to agitate the matter on merits. In support of his submissions, learned Counsel relied upon the judgment of the Apex Court in the case of (Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others) , A. I. R. 1987 S. C. 1353 and (Sonerao s/o Sudashivrao Patil and another v. Godawariai w/o Laxmansing Gahirewar and others) , 2000 (1) Bom. C. R. (A. B. ) 111 : 1999 (2) All. M. R. 507.