JUDGMENT
V.R. Kingaonkar, J.
Page 3629
1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.
2. The petitioners were defendants in suit filed by respondent for recovery of possession in respect of certain house property. They participated in the trial. The suit was decreed on merits. The petitioners preferred an appeal after lapse of six months from the date of pronouncement of the Judgment. They moved an application for condonation of delay caused in filing of the appeal. Their application (MCA No. 95/2005) was dismissed by the learned District Judge, Parbhani. The petitioners challenge this order.
3. The petitioners averred that due to poverty they could not prefer the appeal within prescribed period of limitation. According to them, the delay should have been condoned by taking liberal approach. The petitioners averred that the petitioner No. 1 was suffering from illness for certain period between May and August, 2005. They submit that cause shown by them was sufficient for the condonation of delay.
4. Heard counsel for the parties.
5. Crux of the problem is as to whether there is some plausible and reasonable explanation given by the petitioners in their application (MCA No. 95/2005) for condonation of delay caused in preferring the appeal and that the impugned order is liable to be interfered with on the ground that it is perverse or patently erroneous.
6. Before I proceed to consider legal aspects of the matter, it is worthwhile to note that in the application filed before the learned District Judge, there is absolutely no whisper about so called illness of the petitioner No. 1 during the relevant period. This is not the case in which the exparte order came to be passed against the petitioners. Even assuming that petitioner No. 1 did suffer from some illness, during the period between May to October, 2005 as averred in para 5 of the present petition, then also it is difficult to consider Page 3630 such ground inasmuch petitioner No. 2 is her husband and could have pursued the remedy of appeal. Such ground is conspicuously absent from the application dated 01.12.2005 filed before the learned District Judge and appears to have been carved out while filing the present petition.
7. The factual position is manifestly clear on bare perusal of the application for condonation filed by the petitioners before the learned District Judge. The only relevant statement in the application is thus:
The delay caused in preferring the appeal is of six months. The caused delay is not intentional one. The appellants are poor and helpless persons. If the delay is not condoned appellant may cause irreparable loss which can not be compensated in terms of money. The suit was for recovery of possession and present appellants are tenants. If the delay is not condoned then appellants will become shelterless.
8. The perusal of the impugned order would show that the petitioners remained absent before the Executing Court after service of the notice of the execution petition. The execution petition was adjourned for their appearance on 20th September, 2005. The Executing Court issued attachment warrant thereafter. The record would show that the petitioners appeared on 24.10.2005 before the executing court through their Advocate Shri B.R. Khadase. Significantly, they did not then raise any objection in the execution proceedings. An attachment warrant was issued on 18.11.2005. It appears that when the Court Bailiff visited the premises for execution of the warrant then, the petitioners sought time with an assurance that they would vacate the premises on or about 05.12.2005. The time was granted to them by the respondent as has been observed in the impugned order. Needless to say, since the date of the judgment of the trial court, the petitioners were very well aware about the Judgment rendered against them. They had a notice of the execution petition too.
9. The only ground raised in their application was that there was un-intentional delay, they are poor, and helpless persons and if the delay is not condoned they will be put to an irreparable loss. No other ground was putforth in the application filed by them. I shall consider these averments in order to see whether either of them can be regarded as “sufficient cause” within the meaning of Section 5 of the Limitation Act.
10. There can not be any duality of opinion that normally a litigant would not intentionally commit delay in filing of proceedings like an appeal. The delay can not be condoned only because it is unintentional. It will be rather too wide interpretation if the condonation of delay is to be allowed only because there is no intention of a party to cause delay. The reason is not far to seek. For, the expression “intention” connotes state of mind of a person. The state of mind can not be fathomed without there being attending circumstances. In the present case, there is only an allegation that the petitioners had no intention to cause delay. There are no sufficient attending circumstances placed on record to bolster up such allegation. There is nothing on record to fathom the mind of the petitioners and, particularly, when they were sleeping over their rights while they were made aware of the execution proceedings and had not decided to participate in the same. Secondly, the ground of Page 3631 poverty and helplessness is also too vague and a slippery phraseology used in the application. The petitioners never explained as to when the so called disability was removed and how they surmounted the difficulty at the time of the filing of the appeal at a belated stage after six months. The learned District Judge has observed that mere poverty can not be a ground for condonation of the delay. One can not be oblivious of the fact that the grounds for condonation of delay are required to be spelt out clearly and distinctly in the application filed under Section 5 of the Limitation Act.
11. Faced with this difficulty, learned Counsel Shri S.B.Ghatol-Patil, appearing for the petitioners, invited my attention to certain observations in Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. . The Apex Court has held that justice oriented approach is warranted when there was “sufficient cause” for condoning the delay in the institution of the appeal. The learned Counsel for the petitioners also rely on Sonerao Sadashivrao Patil and Anr. v. Godawaribai and Ors. 1999 MCR-430. A single Bench of this Court has relied upon the aforesaid authority of the Apex Court while condoning the delay in the fact situation of the said case. The learned Counsel for the petitioners further relied on M.K. Prasad v. P. Arumugam . The Apex Court has observed that in construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The learned Counsel further seeks to place strong reliance on Baburao Deorao Wankhede v. Sewa Sahakari Sanstha and Ors. 1989 Mah.L.R. 1144. A Single Bench of this Court has held that the delay could be condoned when the award itself was un-sustainable and could have resulted into injustice. The fact situation of the said case was quite different. In the given case, the knowledge about the award was gathered for the first time on 09.04.1976 and thereafter the petitioner was found continuously pursuing the remedy some time by way of review petition and some time by way of writ petition. Thus, it was noticed that the petitioner was not sleeping over his rights and, therefore, such liberal approach was taken by the learned Single Bench of this Court. This analogy has no application to the fact situation of the present case.
12. The learned advocate for the petitioner would submit that injustice is likely to be caused to the petitioner if the delay is not condoned. He would further submit that delay of six months if is regarded as inordinate then adequate compensation could be awarded to the other side. The basic thing is that the reasons for the delay are not only “insufficient”, “inadequate” and “unpalatable”, but are far away from the requirement of Law under Section 5 of the Limitation Act. They are too vague and, therefore, the discretion used by the learned District Judge can not be lightly interfered with, particularly, in the exercise of supervisory jurisdiction under Article 227 of the Constitution. Page 3632 For,unless there is perversity or patent error noticed from the impugned order itself, I do not think that discretion used by the District Judge can be substituted by exercising discretion of this Court only due to the fact that the petitioners are from ilk of labours. There can not be any quarrel with the proposition that the expression “sufficient cause” is elastic. The question is as to what extent the elasticity may be strained. In case of P.R. Ramchandran v. State of Kerala and Anr. the Apex Court has observed that law of limitation may hardly affect a particular party but it has to be applied with all its rigor prescribed by statute and the Courts have no power to extend period of limitation on equitable grounds. This authority is more applicable to the fact situation of the present case.
13. What the petitioner is asking herein is extension of the time only on equitable ground. The Apex Court in Commissioner of Central Excise, Cochin v. Mathew Kurian Pro. South India Products 1999 AIR SCW 3867 examined the similar question about condonation of delay. In N. Balakrishnan v. M. Krishnamurthy the Apex Court has observed that object of fixing time limit under the Limitation Act is not with purpose to destroy right of the parties but it is founded on public policy. The Apex Court has observed: “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 a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.”
14. Needless to say the question of delay condonation would depend upon peculiar fact situation of each case. There can not be a straight jacket formula in such a matter. The adequacy of reasons stated by the petitioner was duly considered by the learned appellate court and as such the impugned interference regarding absence of sufficient cause as drawn by the appellate court is justified. In any case, it can not be held that the impugned order is perverse or mala fide.
15. The expression “sufficient cause” can not be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of the Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such “sufficient cause” stated in the application and as such no interference in the impugned order is called for.
16. In the result, the petition is dismissed. Rule is discharged. No costs.