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Judgment
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.
The challenge in this petition is to the following orders made by the District Judge at Mapusa in Regular Civil Appeal No.28/2003:- (a) Order dated 20/6/2007 dismissing the appeal against some of the respondents, for failure to take steps to effect service upon them i.e for non prosecution;
(b) Order dated 15/2/2008, dismissing application for condonation of delay for setting side the aforesaid order dated 20/6/2007;
(c) Order dated 22/2/2008 dismissing the appeal itself as abated.
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.
Mr. Vales, the learned counsel appearing for some of the respondents in this petition has made the following submissions:- (a) that this petition stands dismissed against several respondents for failure to take steps. This means that the impugned orders have attained finality in so far as the respondents or the legal representatives of the respondents against whom this petition stands dismissed. Since the main relief applied for in the suit as well as the appeal was for declaration, such relief is indivisible amongst the alleged co owners. He submits that dismissal of this petition against some of the respondents ought to, therefore, result in the dismissal of the entire petition;
(b) In this case the petitioners have been totally negligent in pursuing the appeal. He submits that since no steps were taken despite grant of several opportunities, the learned appeal judge was entirely justified in invoking the provisions of Order 41 Rule 18 (a) of C.P.C. as applicable in terms of the Bombay High Court amendment. He, therefore submits that there is no infirmity whatsoever in the order dated 20/6/2007 made by the learned appeal judge;
(c ) He submits that in terms of Order 41 Rule 19 of C.P.C (Bombay High Court amendment) r/w Article 122 of the Schedule to the Limitation Act, the period of limitation to set aside an order dismissing the appeal for default was 30 days. Admittedly, the application seeking the setting aside of order dated 20/6/2007 was made almost 120 days beyond the prescribed period of limitation. There was no cause, much less sufficient cause shown to explain such delay. Accordingly he submits that there is no infirmity in the impugned order dated 15/2/2008 by which the learned appeal court declined to condone the delay.
(d) He submits that the order dated 22/2/2008 by which the entire appeal came to be dismissed as abated, also, is not legally infirm.
(e) He submits that as against the orders dated 15/2/2008 and 22/2/2008, the petitioners had an alternate and efficacious remedy of instituting an appeal under Order 43 Rule (1) of the C.P.C. However, since the petitioners failed to avail of such alternate and efficacious remedy, the writ petition may be dismissed on this ground as well.
(f) He submits that in the name of justice to one party there ought not to be any injustice to the opposite party. He submits that the respondents have been facing this litigation right from the year 1995 and on account total negligence on the part of the petitioners, there is no reason to prolong the agony of the respondents any further.
For the aforesaid reasons, Mr. Vales submits that this petition may be dismissed with exemplary costs.
The rival contentions now fall for determination.
From the perusal of the impugned orders, one thing which is clear, is that the petitioner''s appeal came to be dismissed not on merits but really on grounds of procedural lapses. In a case where the parties are totally negligent, there is really no option other than dismiss matters for non prosecution or for default. However, in cases where parties are not totally negligent and in any case, the circumstances are suitably explained, the Courts must lean to adjudicate a cause, on merits. Procedure is indeed only the handmaid of justice and not its mistress.
The Hon''ble Supreme Court in the case of Sadar Amarjit Singh Kalra (dead) By Lrs. and others Vs. Pramod Gupta (Smt) (Dead) By LRS. and Others (2003) 3 SCC 272 has held that :
"A careful reading of the provisions contained in Order 22 of CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain in tact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice.
Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal,property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of of law inevitably necessitates it."
(Emphasis supplied)
The first impugned order dated 20/6/2007 reads thus:
20/6/2007 Called out today.
Adv N, Pednekar for appellants present.
Adv C. Chopdekar for respondent nos. 1(a), 1(b), 1(bi), 1(c), 1(ai), 1(e), 1(f), 1(g) & 1(h) present.
Respondents no 1(ci), 1(d), 2, 3, 3(a), 3(ai), 3(b), 3(bi), 4(a), 4(b), 4(c), 4(d), 5, 6, 7, 8(a), 8(b), 8(c), 8(d), g, g(i), Ta, Tb, Tc, Td, Te, 11, 12, 13TT, 14aI, 14b, 14bi,17T, 17tt, 17tt, 17tta, 17t-c, 17t-d, 17t-e, 17t-f, 17t-a, 17t-g, 17t-h, 18-7, 18-8, 19 and 20 ex-parte.
Respondent no 10 and 14(d) served absentto proceed ex-parte.
Respondent nos 13, 14(e), 15, 16(a), 16(b), 17Tb, 18-9 and 18-10 absent to proceed exparte.
Proceedings against respondent nos 18(2) already abated.
No steps have been taken by the appellant to serve respondent nos. 13T, 13Ta, 13TTa, 14(c), 14(f), 17, 18(i), 18(3), 18(4), 18(5) and 18(6) though sufficient opportunities were given.
Adv Pednekar submits that parties did not contacted since long on account of which steps could not be taken.
The impugned order dated 15/2/2008 has refused to condone the delay of about 120 days or about 5 months in taking out an application for recall of the aforesaid order dated 20/6/2007 and for the readmission of the appeal against some of the respondents. In the application seeking condonation of delay, the petitioners have explained the difficulties arising out of the unduly large number of the respondents to the appeal i.e. 80 number, who were stated to be residing in different parts of Goa. It is stated in the application that out of 80 respondents, the petitioners had managed to serve about 70 respondents. It is further stated that the petitioners were regularly attending and following up the matter. The petitioners have taken steps from time to time to serve notices upon the respondents, however, such notices in some cases, were returned unserved. It is also stated that the there was no presiding officer and therefore, the application seeking recall of the order dated 20/6/2007 could not be made. It is also stated that when the application was taken for lodging, the registry raised an objection that the entire cause title was necessary to be stated in the civil application. When, the petitioners returned with the corrected application indicating the full cause title, the petitioners were informed that the application is required to be accompanied by an with application for condonation of delay. It is stated that most of the appellants are residing in the village of Morjem and most of them are illiterate and uneducated persons. It is reiterated that number of respondents being very large despite efforts, it was not possible to trace their addresses. It is also stated that for some time the advocate for the appellant was unwell. On all these grounds it was submitted that delay be condoned in the interest of justice. The delay in present case was not inordinate. The explanation furnished was also not malafide or in furtherance of any stratagem.
The learned appeal judge, however, by order dated 15/2/2008 has declined to condone the delay stating that no sufficient cause was shown. The learned appeal judge has expressed surprise that the advocate for the appellant did not instruct the appellants to type the entire cause title or to support the application for recall by an application for condonation of delay. On these grounds, the learned appeal judge opined that no sufficient cause was shown for condonation of delay and dismissed the application for recall of order dated 20/6/2007. On a later occasion i.e. on 22/2/2008, the advocate for the appellants filed an appellation stating that in fact there was no necessity for applying to condone the delay since the matter is covered by Article 122 of the Limitation Act. On this occasion the learned appeal judge dismissed the entire appeal as having abated by order dated 22/2/2008.
The second impugned order dated 22/2/2008 reads thus :
Heard advocate P. S. Rao.
He filed application today saying that condonation was not required for orders of this court dismissing the appeal against some of the respondents.
Thereafter he wanted to withdraw said application saying that Art 122 of the Limitation Act stands attracted.
Thereafter he sought time to file appeal and prayed for adjournment.
However since the appeal is dismissed against some of the respondents for want of steps the same has to be considered as abated as far as other respondents are concerned.
Hence appeal stands dismissed as abated.
Proceedings closed."
In matters of condonation of delay, a liberal approach is warranted. It is true as contended by Advocate Vales that the appellants have failed to take prompt steps in effecting service upon some of the respondents in the appeal or for that matter to take steps in the mater of bringing on record the legal representatives of the deceased respondents. However, from the perusal of the material on record it cannot be said that this is a case of some gross negligence on the part of the appellant/petitioners. In fact the record indicates that steps were being taken from time to time. However, it appears that the number of parties were too large to be manageable. In most cases, involving condonation of delay, it is possible that there is some amount of negligence on the part of the litigants. However, that by itself, is not enough to turn down the plea of such litigants and to shut the door against them. If the explanation does not smack of malafides or is not put forth as part of dilatory tactic, the Court must show utmost consideration to the suitors. However, whilst condoning the delay, the Court should not forget the opposite part altogether. It must be borne in mind that the opposite party is also a looser and the opposite party too, would have to incur quite a large litigation expense. Therefore, it would be a salutary guideline that when, the court condones the delay, the Court must compensate the opposite party for its loss.
In this case, the delay was really not inordinate. There was sufficient explanation regards such delay. The number of respondents in this case is indeed particularly large. The record indicates that about 70 out of the 80 respondents were served. The record indicates that the appellants/petitioners have from time to time been taking steps, to serve though, it is true that such steps may not have resulted in full service. There is nothing malafide about the explanation furnished. Quite often, the registry raises objection relating to procedural requirements and then some time is required for compliances. This is not to say that the registry should not be vigilant about such matters. However, the Court, when considering the application for condonation of delay should not be unmindful of such matters. The Court must be more discerning and considerate particularly when delay is not inordinate and explanation, not malafide. The litigants usually rely upon their lawyers for such procedural compliances. The lawyers in turn entrust such matters to their juniors or clerks. These are some of the practical issues, which, though cannot be granted some blanket judicial sanction, cannot be altogether ignored either. Further, in this case, the appellants/petitioners had nothing to gain by delaying their own appeal. The primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. Such procedural requirements are basically required to ensure that there is compliance with natural justice and the parties do not resort to dilatory tactics. In dealing with applications for condonation of delay the overall conduct of the party has to examined. Unless it is established that a litigant has been irresponsible or grossly negligent, the Courts must show utmost consideration to the suitors.
The aforesaid approach finds sustenance in the case of N. Balkrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123, where the Hon''ble Apex Court at paras 8, 9, 10, 11, 12 and 13 has made the following observations, which apply to the present case as well.
"8. The appellant''s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.
Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and State of West Bengal Vs. The Administrator, Howrah Municipality
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 should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quiet a 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."
( Emphasis supplied)
Upon due consideration of the facts set out in paragraphs 10 of this order and applying the aforesaid principles to the said facts, the order dated 15/2/2008 refusing to condone the delay in the institution the application seeking recall of the order dated 20/6/2007 is required to be set aside. Further upon perusal of the application seeking recall of the order dated 20/6/2007, it is clear that sufficient cause has been shown and therefore, the order dated 20/6/2007 is also liable to be recalled.
Some reasonable opportunity is required to be granted to the appellants to complete service and to take steps to bring on record the legal representatives of the deceased respondents. No doubt, for this purpose, it will be necessary for the appellants before the appeal court to take out appropriate applications including inter alia applications to explain the delay, if any, in bringing the legal representatives on record. However, this not a case where such minimum opportunity should also be declined to the petitioners.
In so far as the order dated 22/2/2008 is concerned, the same is entirely non speaking. The order states that the advocate for the appellants wanted to withdraw the application for condonation of delay on the ground of that the matter was covered under Article 122 of the Limitation Act. The learned appeal court, was quite justified in declining leave to withdraw the application for condonation of delay because in the facts and circumstances of the present case there was indeed delay and the explanation for such a delay was necessary. However, thereafter the learned appeal Court has simply stated the the appeal stands dismissed abated since, the appeal had already stood dismissed against some of the respondents for want of steps. This order is also required to be set aside. No doubt, since abatement has already set in, it will be for the appellant to take out appropriate application for setting aside abatement and explaining the delay for taking out such applications. This is however not a case, where such minimum opportunity should also be denied to the appellants.
Mr. Vales may be right in his submission that since this petition stands dismissed as against some of the respondents, it is possible to urge that the impugned orders have become final qua the respondents against whom this petition stands dismissed. However, Mr. Lotlikar contends that some of the respondents against whom, the petition stands dismissed are the original appellants before the appeal court. Further, he submits that some of the respondents are parties who have evinced no interest whatsoever in the matter and in their absence, it cannot be said that the entire petition stands abated. In any case Mr. Lotlikar submits that even this issue can be kept open for determination by the appeal court should this Court, restore to file of the appeal court. Now that the impugned orders are being set aside, even this issue as to whether the appeal can proceed further on merits, in view of the dismissal of this petition against some of the respondents can be kept open for determination by the appeal court. Accordingly, these issue is specifically kept open for determination by the appeal court.
In so far as the objection raised by Mr. Vales on the availability of alternate remedy is concerned, it is required to be noted that Mr. Vales is quite right in submitting that the petitioners did have an alternate remedy by way of institution of appeals from orders under Order 43 Rule 1 of the C.P.C. However, it is well settled that the existence of the alternate remedy does not mean that a petition under Articles 226 and 277 of the Constitution of India is barred or not maintainable. The contention that a petition will not be entertained when an alternate and efficacious remedy is available is more of a self imposed restriction. In the present case, however, the petitioner''s application for seeking recall of order dated 20/6/2007 was never really considered on merits . All that was considered was the application seeking condonation of delay. Even against such an order, an appeal from order might lie. However, this is stated only in order to indicate that it is possible that the petitioners were generally confused in the matter and therefore instituted a writ petition rather than an appeal against order. Besides, this is a case where some of the impugned orders might be appealable and others not. At least this is a case where the petitioners and their advocates entertained bonafide doubts whether appeals lay against all the impugned orders. The orders are intrinsically connected with one another. In such circumstances the alternate remedy might not have been efficacious. Besides, this petition was admitted some time in the year 2009 and has come up for final hearing in 2017. Even the appeals would lie to this Court since the impugned orders are made by the District Court. Upon cumulative consideration of all these aspects, at this stage, it will not be proper to non suit the petitioners on the ground of availability of alternate remedy.
Accordingly this petition is disposed off with the following:- ORDER
(i) The impugned orders referred to in paragraph 2 of the judgment and order are hereby set aside and the Regular Civil Appeal No. 28/2003 is restored to the file of the learned Appeal Court.
(ii) The aforesaid, is subject to payment of costs of Rs.1,00,000/- (Rupees one lakhs only) by the petitioners in the following manner:-
(a) Costs of Rs.50,000/- shall be paid to the respondent nos.1(i), 1(b) 1(bi) and 1(d) who have contested this appeal by engaging an advocate;
(b) Costs ofRs.50,000/- to be paid to the original defendants in the suit or their legal representatives (other than the aforesaid respondents).
(c) Costs of Rs.1, 00,000/- in all to be deposited before the Appeal Court within a period of 6 weeks from today. Thereafter, the respective respondents, shall be at liberty to withdraw the same unconditionally.
(iii) In case the amount of costs is not deposited before the Appeal Court within a period of 6 weeks from today, the appellants shall not have the benefit of this order and this appeal shall be deemed to have been dismissed without any further reference to this Court.
(iv) The objections raised by Mr. Vales, including in particular, the objection noted in paragraph 19 of this judgment and order, are specifically kept open for determination by the Appeal Court.
(v) The M.C.A No.175/2016 for bringing on record legal representatives of some of the respondents is disposed of with liberty to move such application before the Appeal Court, now that all such issues are kept open before the Appeal Court.
(vi) Nothing in this order should be construed as dispensation to the appellants from taking steps to ensure that there are procedural compliances within a reasonable period of eight weeks. If there is delay, it will for the appellants to explain such delay by taking out appropriate applications seeking condonation of delay. However, the period between making of impugned orders and the period ending within eight weeks of the date of the present judgment and order, shall be either excluded or treated as validly explained for such purpose.
Rule is made absolute to the aforesaid extent.
All concerned to act on the authenticated copy of this order.