DATTA ATCHUT DABOLKAR Vs. ATMARAM SHAMBU DABOLKAR

JUDGEMENT

(1.) Heard Mr. S.D. Lotlikar, the learned Senior Counsel with Ms. M. Furtado for the petitioners and Mr. S. Vales, learned counsel for some of the respondents.

(2.) The challenge in this petition is to the following orders made by the District Judge at Mapusa in Regular Civil Appeal No.28/2003:-

(3.) Mr. Lotlikar, the learned Senior Counsel for the petitioners (some of the original plaintiffs in RCS NO.96/2001 - Old NO.156/85-A) submits that when the suit was originally instituted the number of the plaintiffs and the defendants was manageable. However, as the suit progressed, there were several deaths, as a result, the number of the plaintiffs as well as the defendants increased manifold. He submits that this is quite evident from the perusal of the cause title in the RCA No.28/2003 in which, the aforesaid impugned orders came to be made. He submits that as a result, despite best efforts, there was problem in effecting service upon the respondents or in the matter of taking steps to bring on record the legal representatives of the deceased respondents. He submits that after the appeal was dismissed against some of the unserved respondents by order dated 20/6/2007 there was delay of about 120 days in instituting an application for readmission of the appeal. Despite sufficient cause being shown, the learned appeal judge adopted hyper technical and pedantic approach and declined condonation of delay by order dated 15/2/2008. In response to the application made on behalf of the appellants that in the matter of this nature, there was no necessity to even apply for condonation of delay, the learned appeal judge proceeded to dismiss the entire appeal has having been abated. Mr. Lotlikar, submits that procedure is only the handmaid of justice. He submits that on account of certain procedural lapses which were entirely unintentional and in any case, explained with sufficient cause, the petitioners have been deprived the valuable opportunity of appeal against the judgment and decree made by the learned trial judge. Mr. Lotlikar submits that the dispute between the parties pertains to landed property and relief of declaration has been applied for. Mr. Lotlikar submits that none of the impugned orders relate even remotely to the merits of the dispute between the parties. Mr. Lotlikar submits that in the facts and circumstances of the present case, sufficient cause had been shown to explain the delay of hardly 120 days in seeking the readmission of the appeal and the recall of the order dated 20/6/2007. Mr. Lotlikar submits that the explanation "sufficient cause" is required to be interpreted liberally and not pedantically. For all these reasons Mr. Lotlikar submitted that the impugned orders are liable to be set aside.