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N.V. Anjaria, J.—The present application is filed praying to condone the delay, which has taken place in preferring the Civil Revision Application. The Revision is sought to be preferred against the judgment and decree dated 7th January, 2009 in Regular Civil Appeal passed by the District Court, Rajkot. The delay is of 1304 days. The delay is sought to be explained by submitting in the Civil Application that after the appeal was preferred before the District Court in the year 1992, the applicant used to meet the advocate asking him about the progress of the case, however, at every such time he was being informed that the matter was not on Board. It is averred by the applicant that with passage of long time gradually his contact with the advocate did not actively continue. It is applicant''s case that when the judgment sought to be impugned was delivered, he had no knowledge as the advocate did not intimate him.
After initial averments in the main application to the above effect, the applicant has filed additional affidavit in support of the reasons given and has elaborated the circumstances leading to passage of time. In that, it is stated that the suit property was ancestral property; it was being handled by his younger brother Mayurbhai right from the time when the suit was instituted. It was stated that Mayurbhai used to attend the court proceedings every time, but even after long time the litigation saw no end, and that latter his brother developed dispute with the advocate.
2.1 In the additional affidavit, it is stated inter alia as under.
... thereafter the partition of the ancestral property took place in the year 2010 till than litigation pending before the Sessions court at Rajkot being R.C.A. No. 76 of 1992 was handled by his brother Mayurbhai....after the family partition deed, the suit property came in the share of the present applicant and therefore his brother Mayurbhai informed him that he is not in good terms with the advocate and requested him to deal with the matter. The applicant thereafter approached his advocate Mr. B.H. Patel who was appearing on behalf of the applicant and inquired about the status of the matter but the advocate avoided giving reply in a proper manner ....thereafter decided to take back the brief from the said advocate but he was informed that the file has been misplaced and he may come after some time.
The applicant thereafter approached one of his cousin brother named Manjibhai Maru who was serving in the Court in the past and requested him to do needful to get back the brief form the advocate....applicant and his cousin brother Manjibhai who was known to the advocate Mr. B.H. Patel, visited the office of the advocate and requested to give back the brief ....the applicant was asked to visit after some time and in this way the advocate and his other colleagues took a long time in searching the file.
... he was informed about the order passed by the Hon''ble Sessions Court and was given back his file ....The above incident took place in the month of October 2012. Thereafter on the same day the applicant approached advocate Mr. P.B. Maru whose office is exactly opposite to the office of Mr. B.H. Patel from where the applicant was suggested to approach this Hon''ble Court.
The applicant thereafter approached this Hon''ble Court through his advocate and preferred Civil Revision Application on 31st October 2012 that is within a month from his receiving the brief and his coming to knowledge about the order and decree passed by the Hon''ble Sessions Court.
Heard learned advocate Mr. K.S. Chandrani for the applicant and learned advocate Mr. Nisarg M. Desai for the respondent.
Learned advocate for the applicant relied on the averments in the application and those made in the additional affidavit to submit that when in the year, 2010 partition of the ancestral property took place, the suit property came to his share and at that time, he knew from his brother that he was not in good terms with the advocate. It was submitted that thereafter without wasting time, he had taken necessary steps, and ultimately upon contacting and engaging another advocate, he managed to file the appeal before the High Court. He submitted that he very much wanted to prefer the appeal, but was prevented by the aforesaid circumstances.
4.1 On the other hand, learned advocate for the respondent opposed the prayer for condonation of delay and submitted that there was a clear lethargy and negligence on the part of the applicant. He submitted that long delay of 1304 days by itself is suggestive of the fact hat the applicant had no care for the matter. He next submitted that it was not believable that the applicant was not in contact with his advocate for such a long time. He relied on the decision in Katari Suryanarayana and Others Vs. Koppisetti Subba Rao and Others, wherein the Supreme Court did not condone delay of 2381 days and observed that it was difficulty to conceive that the appellant of that case were not in contact with their lawyer from 1999 to 2006.
4.2 Considering the explanation furnished for delay, it emerges that it was applicant''s brother who was all along looking after the affairs and attending to the litigation of the property which was ancestral. The present applicant came into picture and became alive to the situation when in the year 2010, the property was partitioned and fell to his share. The judgment sought to be appealed against was delivered in the year 2009. After coming into knowledge the applicant took swift action, changed the advocate and obtained back the case papers from previous advocate with much difficulties, and then got the appeal filed through another advocate. There is nothing to smack artificial in the aforesaid reasons given and explanation advanced for accounting for the passage of time.
Legal parameters in the matters of condonation of delay are settled in several decision of the Supreme Court wherein it is emphasised time and again that "sufficient cause" for the purpose of sec. 5 of the Limitation Act is a flexible concept to be elastically construed to advance the cause of substantial justice. A liberal approach is advocated as against the pedantic perception.
5.1 In Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs. and Others, , the Supreme Court enlisted the following principles on the aspect of condonation of delay
(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer''s lapses more leniently than applications relating to litigant''s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of "diligence" or "inaction" can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.
5.2 In more recent decision in B. Madhuri Goud Vs. B. Damodar Reddy, , the Supreme Court reiterated the settled law stating that the expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years Courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay.
5.3 From the apex decision in N. Balakrishnan Vs. M. Krishnamurthy, , following observations may be usefully noticed.
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 the 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. 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.
Giving due regard to the reasons and grounds stated by the applicant which seem to be bonafide, it could be safely said that the passage of time in preferring the Revision Application has been satisfactorily explained. Once the applicant was made aware and started handling the things, he has acted with diligence. At no point off time, even prior thereto, negligence could be attributed to him. It is not that time was whiled away. Delay which has occasioned is not in any way intentional. In the explanation furnished, sufficient cause exists. When sufficient of cause is shown and made out, the length of delay by itself does not become a debilitating factor, rather it is rendered immaterial.
In the above view, delay deserves to be condoned. At the same time, however, while condoning delay, the applicant needs to be put to terms. Due to passage of time, the other side is required to be compensated. Therefore, it is directed that as a condition for condoning the delay, the applicant shall pay costs of Rs. 3,500/-. Out of total amount of costs imposed, Rs. 1500/- shall go to the funds of the Gujarat High Court Advocates Library, while the rest of the amount shall be paid to the respondent. The amount of costs shall be deposited within three weeks and receipt of the payment made to the Advocates'' Library, shall be produced on record by submitting the same to the Registry. Accordingly, this application is allowed. Delay of 1304 days condoned. Rule is made absolute in above terms.