Case Note & Summary
The judgment concerns two writ petitions arising from orders of the Adhoc District Judge-I, Kolhapur. Writ Petition No.6271 of 2010 challenges an order dated 8-12-2009 condoning a 39-day delay in filing an appeal, subject to costs. Writ Petition No.4088 of 2011 challenges an order dated 26-10-2009 rejecting an application (Exhibit-10) for condonation of a 6-day delay in bringing the heirs of a deceased plaintiff on record. The court first considered the latter petition, noting that the lower court took a highly technical view in rejecting the condonation application despite the petitioner living in an adjoining house. The court held that a liberal approach should be adopted to further substantial justice, and condoned the delay. Consequently, the appeal would not abate, and the challenge in the first petition became academic. The court allowed the second petition, set aside the order rejecting condonation, and directed the lower court to proceed with the appeal on merits. The first petition was dismissed as infructuous.
Headnote
A) Civil Procedure - Condonation of Delay - Liberal Approach - In matters of condonation of delay, a highly pedantic approach should be eschewed and an approach which furthers the cause of substantial justice should be adopted - The party should be allowed to prosecute its remedy on merits rather than being thrown out on technicalities - Delay of 6 days condoned (Paras 6-7).
Issue of Consideration
Whether the lower appellate court erred in rejecting the application for condonation of delay of 6 days in bringing the heirs on record, and whether such rejection renders the appeal abated.
Final Decision
Writ Petition No.4088 of 2011 is allowed. The order dated 26-10-2009 passed by the Adhoc District Judge-I, Kolhapur rejecting Exhibit-10 is set aside. The application for condonation of delay of 6 days is allowed. The lower court is directed to proceed with the appeal on merits. Writ Petition No.6271 of 2010 is dismissed as infructuous. Rule made absolute accordingly.
Law Points
- Condonation of delay
- liberal approach
- substantial justice
- technicalities
- abatement
- limitation
Case Details
2011 LawText (BOM) (11) 28
Writ Petition No.6271 of 2010 and Writ Petition No.4088 of 2011
Mr. Amit Borkar (for Petitioner in WP 6271/2010), Mr. S.S. Patwardhan (for Petitioner in WP 4088/2011 and Respondent in WP 6271/2010)
Yuvraj Vithu Sutar (in WP 6271/2010); Dinkar Lahu Sutar (in WP 4088/2011)
Dinkar Lahu Sutar (in WP 6271/2010); Bajirao Vithu Sutar & Ors. (in WP 4088/2011)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil writ petitions challenging orders of the lower appellate court regarding condonation of delay in filing appeal and bringing heirs on record.
Remedy Sought
Setting aside the order condoning delay in filing appeal (WP 6271/2010) and setting aside the order rejecting condonation of delay in bringing heirs on record (WP 4088/2011).
Filing Reason
The lower court condoned a 39-day delay in filing appeal but rejected a 6-day delay in bringing heirs on record, leading to cross challenges.
Previous Decisions
The Adhoc District Judge-I, Kolhapur passed orders dated 8-12-2009 (condoning delay in appeal) and 26-10-2009 (rejecting condonation of delay in bringing heirs).
Issues
Whether the lower court erred in rejecting the application for condonation of 6 days delay in bringing heirs on record.
Whether the appeal abates due to failure to bring heirs on record within time.
Submissions/Arguments
Petitioner in WP 4088/2011 argued that the lower court took a highly technical view and that delay should be condoned to allow merits hearing.
Respondent in WP 4088/2011 argued that the petitioner acquiesced in the order by filing a review application and taking a stand that proceedings had not abated.
Ratio Decidendi
In matters of condonation of delay, a highly pedantic approach should be eschewed and an approach which furthers the cause of substantial justice should be adopted. The party should be allowed to prosecute its remedy on merits rather than being thrown out on technicalities.
Judgment Excerpts
It is trite that in matters of condonation of delay, a highly pedantic approach should be eschewed and an approach which furthers the cause of substantial justice should be adopted.
It is also trite that the party should be allowed to prosecute its remedy on merits rather than being thrown out on technicalities.
Procedural History
The trial court passed a decree on 26-3-2009. The respondent filed an appeal with a 39-day delay, which was condoned on 8-12-2009. Meanwhile, the plaintiff No.1 died, and the respondent filed an application (Exhibit-10) for condonation of 6 days delay in bringing heirs, which was rejected on 26-10-2009. The petitioner in WP 6271/2010 challenged the condonation of delay in appeal, while the petitioner in WP 4088/2011 challenged the rejection of condonation of delay in bringing heirs. The High Court heard both petitions together.
Acts & Sections
- Limitation Act, 1963: Section 5
