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Judgment
N.A. Britto, J.—The Village Panchayat of Curca-Bambolim-Talaulim(Panchayat, for short) has presented an appeal on 23-7-2007 against Judgment/Order dated 21-4-2006 of the learned Additional District Judge, Panaji, and, in order to condone the delay of 354 days in filing the same, the Panchayat has filed the present application on 24-7-2007. The case of the Panchayat is that the then Sarpanch of the Panchayat approached the Office of Mrs. Anja Lotlikar somewhere in the month of May, 2006 for filing an appeal against the said Judgment and the matter was then referred to Ms. Shreya Naik for preparation and filing of the appeal. As per the Panchayat, the said appeal was prepared in July, 2006 and the then Sarpanch Mrs. Manila Sawant even verified an application for stay before the Registrar of this Court at Goa which was to be filed along with the memo of appeal. As per the Panchayat, the said appeal was to be filed after requisite court fees were furnished by the Panchayat and the said appeal was being handled by Ms. Shreya Naik who was attached to the Office of Mrs. Anja Lotlikar. The said Ms. Shreya Naik ceased to be attached to the Office of Mrs. Anja Lotlikar from August, 2006 and the file remained unnoticed with other disposed of files lying on the table of Ms. Shreya Naik and that none of the other Advocates from Mrs. Anja Lotlikar''s office were aware of the said appeal and the appeal therefore remained to be filed and Shri Subhash Dias, the Sarpanch of the Panchayat who took charge on 22-5-2007 did not know anything about the appeal that was to be filed. As per the Panchayat on 20-7-2007 the Panchayat received a notice of an execution application before the learned Additional District Judge, Panaji that the Panchayat went through the records of the Panchayat and came to know that the said matter was referred to Ms. Shreya Naik to file an appeal before this Court against the said Judgment dated 21-4-2006 and thereafter the Panchayat immediately contacted the office of Mrs. Anja Lotlikar to find out about the status of the said appeal and also the application for stay and the Advocates from Mrs. Anja Lotlikar''s office immediately contacted Ms. Shreya Naik to find out the status of the appeal who were then informed that the appeal was not filed as Ms. Shreya Naik was not furnished the requisite court fees and subsequently forgot about the same. The Panchayat therefore has sought condonation of delay of 354 days in filing the appeal.
The Respondents, who were the Plaintiffs in the said Civil Suit partly decreed on 21-4-2006, have seriously contested the application by filing an affidavit through their son and attorney. As per the Respondents the said attorney is administering and managing the suit property for the last more than 20 years and it is he who had filed the suit on behalf of the said Respondents. He has stated that the present Sarpanch(Mr. Subhash Dias) is on inimical terms with him and his parents and was the Sarpanch when extensive damage was caused to the suit property inspite of several representations made by him for and on behalf of his parents. As per the Respondents, Mr. Subhash Dias was also the Sarpanch of the Panchayat when the suit was filed and subsequently his wife Smt. Bhagirathi became the Sarpanch and throughout the suit it was Mr. Subhash Dias who appeared as the first witness of the Panchayat and subsequently when objection was raised, he examined his wife, as Sarpanch of the Panchayat. According to the Respondents the said Bhagirathi was the Sarpanch of the Panchayat from January, 2002 to December, 2005 and it was the said Mrs. Manila Sawant who became the Sarpanch from January, 2006 and continued till 30-1-2007 and from 31-1-2007 till 19-5-2007 the said Mrs. Manila Sawant was appointed as the Administrator by the Government of the Panchayat and so she was in full charge of the Panchayat from January, 2006 to 19-5-2007 and because the said Mrs. Manila Sawant or the Panchayat had no intention to file an appeal against the impugned Order, that the appeal was not filed and in order to create false grounds and to perpetuate his illegal designs against the Respondents, Mr. Subhash Dias has filed a false affidavit when he was not at all knowing the facts mentioned in paras 2, 3 and 4 of the application filed by him on behalf of the Panchayat.
As per the Respondents, Mrs. Anja Lotlikar is the wife of Senior Counsel Mr. Saresh Lotlikar and if the facts mentioned in paras 2, 3 and 4 of the application of the Panchayat had any substance, either Mrs. Anja Lotlikar or Ms. Shreya Naik would have supported the Panchayat on facts narrated by the Sarpanch of the Panchayat. The Respondents have stated that the facts stated on behalf of the Panchayat in paras 2, 3 and 4 are false facts in order only to create ground blaming the Advocate, the said statements are made. Respondents have denied that the Panchayat contacted the office of Mrs. Anja Lotlikar to inquire about the status of the appeal as also the application for stay as alleged by him. The Respondents have denied that the Panchayat came to know that the matter was referred to Ms. Shreya Naik to file an appeal before this Court against the said Judgment dated 21-4-2006, and, at one place the Sarpanch has stated that Ms. Shreya Naik ceased to be attached to the office of Mrs. Anja Lotlikar and at other place he says that he contacted Ms. Shreya Naik without disclosing when he contacted her. As per the Respondents, the said Mr. Subhash Dias, the present Sarpanch, has on account of his enmity with the Respondents and their son alleged false grounds hoping that if the Advocate is blamed then this Court will condone the delay without knowing that during the period of limitation and also thereafter till 19-5-2007 Mrs. Manila Sawant was representing the Panchayat and she has not given any support to the facts alleged in the application. As per the Respondents, there is inordinate and unexplained delay and therefore the application deserves to be dismissed with heavy costs.
On behalf of the Panchayat, no affidavit in rejoinder has been filed to contest the facts stated by the Respondents in their affidavit dated 3-10-2007, but, subsequently, on 9-1-2008 an affidavit of the said Ms. Shreya Naik has been filed and in the said affidavit the said Ms. Shreya Naik has stated that the memorandum of appeal was drafted in July, 2006 and the said Mrs. Manila Sawant, the then Sarpanch had verified the application for stay which was to be filed along with memorandum of appeal before the Registrar of this Court and she had identified the said Mrs. Manila Sawant on 19-7-2006. At the time of swearing of the said affidavit in support of the application for stay she had further stated that she went on leave from third week of May, 2006 and got married on 10-6-2006 and was on leave till the first week of July, 2006 and joined Magnum Constructions from 1-8-2006 and since then ceased to be attached to the office of Mrs. Anja Lotlikar from third week of July, 2006 and only in August, 2007 that one of the Advocates of Mrs. Anja Lotlikar(without naming him or her) now appearing on behalf of the Appellant, contacted her and inquired about the status of the appeal.
On behalf of the Panchayat, the application for stay sworn on 9-7-2006 by the former Sarpanch Mrs. Manila Sawant has been filed and it is interesting to note that in the said application dated 9-7-2006 the former Sarpanch Mrs. Manila Sawant has stated that the appeal was filed on that day and not only that the present Sarpanch has filed another affidavit dated 24-7-2007 to support the said application dated 9-7-2006 and in that Mr. Subhash Dias, the present Sarpanch has confirmed that the fact stated in the first para i.e. the appeal was filed on that day is true to the best of his knowledge, when in fact no appeal was at all filed. It is also seen from the said application dated 9-7-2006 which has now been registered under Stamp No. 1982/2007 on 23-7-2007 that it was settled by Advocate Ms. S. Mordekar and not by Advocate Ms. Shreya Naik.
Be that as it may, Ms. S. Mordekar, learned Counsel on behalf of the Panchayat submits that the Panchayat is a statutory body and in case there has been delay in filing the appeal that was due to the change of Sarpanch as well as the change of Advocate. According to her, the memorandum of appeal presented on 23-7-2007 was drafted by her after the said Ms. Shreya Naik was contacted and it was found out that she had not filed the appeal. Learned Counsel Ms. Mordekar has submitted that none of them in the office of Mrs. Anja Lotlikar knew that the appeal was not filed and only after the present Sarpanch Shri Subhash Dias took over from 22-5-2007 and contacted their office and they contacted the said Ms. Shreya Naik that they came to know that the appeal was not filed.
On the other hand, Mr. V. K. Bodke, learned Counsel on behalf of Respondents No.1 and 2 has produced a certified copy of the resolution of the Panchayat and has submitted that the same was taken only after the application was filed i.e. on or about 31-7-2007 and there was no resolution taken earlier during the tenure of the former Sarpanch Mrs. Manila Sawant to file the appeal. Learned Counsel has produced a copy of the said Resolution which shows that the said Mrs. Manila Sawant continues to be the Deputy Sarpanch in the present set-up of the Panchayat. Mr. Bodke further submits that the court fees for filing the appeal have also been purchased after 27-7-2007 and this shows that during the tenure of the former Sarpanch the filing of the appeal was given up and it is the present Sarpanch Mr. Subhash Dias, who on account of his enmity, towards the Respondents have now chosen to file the present appeal. Mr. Bodke further submits that in case an appeal was to be filed it was the Secretary of the Panchayat who should have taken all the steps in filing the same since in terms of Section 47 of the Goa Panchayat Raj Act, 1994 the executive powers and functions are vested in the Secretary. In fact Section 47 of the Goa Panchayat Raj Act, 1994, inter alia, provides that it is the Secretary who has to execute the resolutions passed by the Panchayat body.
Learned Counsel on behalf of both parties, have not been able to throw any light as to how (a) an application for stay now stamped under No.1982/07 on 23-7-2007 could be filed without there being a memo of appeal and (b) such application could be taken away, after presenting the same to the Court. As already stated the said application shows that it was settled by learned Counsel Ms. Mordekar and learned Counsel Ms. Shreya Naik had only identified the said former Sarpanch Mrs. Manila Sawant. The said application also avers that the appeal was filed.
It is well settled that proof of sufficient cause is a condition precedent for exercise of jurisdiction vested in the Court and it is not the length of the delay but the sufficiency of cause which matters and shortness of delay could be one of the circumstances to be taken into account in using the discretion. It is also well settled that Section 5 of the Limitation Act is to be construed liberally so as to do substantial justice to the parties but at the same time it does not mean that the Court should readily accept whatever the Appellant alleges to explain away his default. The Court is required to scrutinize the cause shown and would be fully justified in considering the merits of the evidence led to establish the cause for the default in applying within time.
As far as the facts of this case go it must be at once stated that the application for condonation of delay dated 24-7-2007 has been filed in a most cavalier manner. One does not know why the former Sarpanch Mrs. Manila Sawant who is also the Dy. Sarpanch at present and who is stated to have approached the office of Mrs. Anja Lotlikar has not filed an affidavit to support the application or the statement of Advocate Ms. Shreya Naik. She was in charge of the Panchayat for a year from May, 2006 to May, 2007 and she could have certainly told the Court as to when she approached Advocate Mrs. Anja Lotlikar and when she was called back by Ms. Shreya Naik with court fees and as to why she did not go with the court fees if she was told to bring them, for one full year. Likewise, the Secretary, who is required to execute the decisions of the Panchayat, has also not filed any affidavit. Adverse inference has got to be drawn against them. The present Sarpanch in his application has stated that the then Sarpanch of the Panchayat had approached the office of Mrs. Anja Lotlikar and the said matter was then referred to Mrs. Shreya Naik for preparation and filing of the said appeal without naming the Advocate whom she had approached. On behalf of the Respondents, it is stated in the affidavit in reply, that the said facts stated by the present Sarpanch are false as he could not at all know about the said facts, and, I am inclined to believe the said statement made on behalf of the Respondents. The present Sarpanch could have known the said facts either from the former Sarpanch or from Advocate Ms. Shreya Naik and if that was so he was required to state the same specially in his application/affidavit filed in support of the application, but he has stated the said facts as true to his knowledge which has to be considered as false statement. The statement of Ms. Shreya Naik that she had drafted the memorandum of appeal in July, 2006 and which statement has been repeated by the present Sarpanch in his application cannot be accepted because the memorandum which has now been filed, and which as stated by learned Counsel Ms. Mordekar, and which fact can also be confirmed from a look at the said memorandum has been drafted by Ms. Mordekar, and if that is so one does not know what happened to the memorandum of appeal prepared by Ms. Shreya Naik, and, if prepared why it was not filed at all. If an application for stay could have been signed and sworn, presented and then taken away then I don''t see any reason why the memo which was prepared could not be filed with liberty to give the statement of dates an events'' later. The statements of Ms. Shreya Naik that memorandum of appeal was prepared and which statement is repeated by the present Sarpanch are incorrect statements and cannot be accepted. The statement made by Ms. Shreya Naik that she was entirely responsible for the filing of the appeal, as stated in para 3 of her affidavit also cannot be accepted since the application for stay appears to have been drafted and settled by Ms. Mordekar and she too must have known that the appeal was not filed. Ms. Shreya Naik has also made a statement that the Appellant (Sarpanch?) went through the records of the Panchayat and came to know that the said matter was allotted to her. This statement also can be considered as incorrect since no record of the Panchayat could have shown that the matter was allotted to Ms. Shreya Naik in as much as such record has not been produced. It is nobody''s case that the former Sarpanch had directly approached Ms. Shreya Naik for filing the appeal.
In the light of complete silence as regards the delay from the former Sarpanch Mrs. Manila Sawant, from the Secretary of the Village Panchayat who is supposed to execute all the orders of the Panchayat, from the Advocate to whom the former Sarpanch is said to have approached and who allotted the work of drafting to Advocate Ms. Shreya Naik, and, in the light of incorrect statements made by the present Sarpanch as well as Ms. Shreya Naik, least that can be stated is that the Panchayat has failed to explain satisfactorily the delay of 354 days in filing the present application. As already stated the approach has been most casual. There was no resolution taken to file the appeal nor court fees purchased during the tenure of Mrs. Manila Sawant as Sarpanch and there has been no explanation forthcoming from the Panchayat in that regard. Therefore it appears that the Respondents are right in contending that the Panchayat had earlier given up the idea of filing the appeal and it is only the present Sarpanch who is interested in filing this appeal because of his personal grudge against the Respondents. The application therefore is hereby dismissed.