Case Note & Summary
The petitioner, Smt. Conceicao Maria Pereira Fernandes, filed a writ petition in the High Court of Bombay at Goa challenging an order dated 2nd July 2004 passed by the IInd Additional District Judge, Panaji, in Civil Misc. Application No.244/2003. The lower appellate court had dismissed the application for condonation of delay of 11 days in filing an appeal against the judgment and decree in Regular Civil Suit No.170/1993. The petitioner, along with respondents No.5 and 6, sought condonation of the delay. The High Court heard Mr. Nitin Sardessai for the petitioner and Mr. Joseph Vaz for respondents No.1 and 2. Respondents No.3 to 6 were served but did not appear. The court noted that the lower appellate court had refused to condone the delay after hearing counsel. The High Court observed that a liberal approach should be adopted in condoning delay unless there is negligence or malafides on the part of the applicant. The court found that the delay of 11 days was not intentional and the explanation provided was sufficient. Consequently, the High Court allowed the writ petition, set aside the order of the lower appellate court, condoned the delay, and directed the appeal to be heard on merits. The rule was made absolute with no order as to costs.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The court considered whether a delay of 11 days in filing an appeal should be condoned. The lower appellate court had dismissed the application for condonation of delay. The High Court held that a liberal approach should be adopted in condoning delay unless there is negligence or malafides on the part of the applicant. The court found that the delay was not intentional and the explanation was sufficient. (Paras 2-5) B) Civil Procedure - Appeal - Condonation of Delay - Liberal Approach - The court reiterated that in the absence of negligence or malafides, courts should condone delay to decide matters on merits. The High Court set aside the order of the lower appellate court and condoned the delay, directing the appeal to be heard on merits. (Paras 4-5)
Issue of Consideration
Whether the lower appellate court erred in refusing to condone a delay of 11 days in filing the appeal, and whether the delay was for sufficient cause under Section 5 of the Limitation Act, 1963.
Final Decision
Writ petition allowed. Order dated 2nd July 2004 passed by IInd Additional District Judge, Panaji, in Civil Misc. Application No.244/2003 is set aside. Delay of 11 days in filing the appeal is condoned. The appeal is directed to be heard on merits. Rule made absolute. No order as to costs.
Law Points
- Condonation of delay
- liberal approach
- sufficient cause
- negligence
- malafides
- Section 5 Limitation Act
- 1963
