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IN THE HIGH COURT OF BOMBAY AT GOA. MISCELLANEOUS CIVIL APPLICATION NO.1013 OF 2009 IN STAMP NUMBER MAIN NO.3866 OF 2009. Mr. Suresh G. Ramnani, s/o. Gobindram J. Ramnani, about 59 years old, married, Indian national, resident of Wing E, Room No.19, 4th Floor, Mithul Enclave, Opp. Jijamata, Mahul Rd, Chembur, Mumbai 400 074, through his constituted Power of Attorney, Smt. Rekha Gawri, major, Indian National, resident of 9/4, Shivpuri, Chembur Naka, Mumbai -400071.

....... Versus 1 Mrs. Aurelia Ana da Piedade Miranda alias Araiyo Alvares, SEFAA Vidyanagar, Aquem, Margao-Goa ( expired, rep. by L.R.'s)

Applicant.

1(i) Ian Karl Alvares, r/o Scotland, Great Britain, and C/o. Mario Alvares, SEFAA Vidyanagar,

Aquem, Margao, Goa. 1(ii) Lalita Alvares, r/o. SEFAA Vidyanagar, Aquem, Margao-Goa. 2 Mario Jose Alvares, Vidyanagar, Margao Goa. Araiyo SEFAA, Aquem,

Maria Amelia da Piedade, Miranda e Pinto, 417, Rua Abade Faria, MargaoGoa. Jose Savio da Piedade, Albuquerque Pinto, 417, Rua Abade Faria, Margao, Goa. Mr. Kirshnapati Raia, son of Yabheya Prassad Shivasta, aged about 45 years, resident of Junta Quarters, C-2-20, Pajifond, Margao. Budasab Mulla, married, aged about 50 years, r/o. C/o. G. Rammani & Associates, 396, New Township, Opp. Nanba & Shivram Milkman's House, Guirdolim, Chandor, Salcete Goa.

......

Respondents.

Mr. S. Dessai, Senior Advocate with Mr. A. Gaonkar, Advocate for the applicant. Mr. A. F. Diniz, Advocate for the Respondent nos. 1 to 4. Coram:-A. P. LAVANDE,J Reserved on: -2nd May, 2011. Pronounced on: - 6th May, 2011. ORDER By this application, the applicant seeks condonation of delay of 862 days in filing Second Appeal against order dated 26.4.2007 passed by the District Judge, 3, Margao in Civil Miscellaneous Application no. 101/2004 dismissing the application for condonation of delay in filing the appeal against ex-parte judgment dated 26.8.2003 passed by the learned Civil Judge Junior Division, Margao in Regular Civil Suit No.21/1985/C.

2. as under:-

Briefly, the facts relevant for disposal of this application are

The applicant was defendant no.1(c) in Regular Civil Suit No. 21/1985/C filed by respondent nos. 1 to 4. An ex-parte decree came to be passed against applicant on 26.8.2003. On 25.9.2003, the applicant filed an application for setting aside ex-parte decree under Order 9 Rule13

of C.P.C. By order dated 7.8.2004 the trial Court dismissed the said application. The applicant preferred Miscellaneous Civil Appeal no.

71/2004 challenging the said order. The lower Appellate Court dismissed the appeal on the ground that no sufficient case was made out by the applicant not to appear when the suit was called out for hearing.

3.

Against Judgment and decree dated 26.8.2003 passed by the

trial Court, the applicant also filed First Appeal with an application for condonation of delay of 386 days bearing Civil Miscellaneous Application no.101/2004. By order dated 26.4.2007 the lower Appellate Court

dismissed the said application holding that applicant had not made out sufficient cause for condoning the delay.

4.

The Petitioner filed Writ Petition no. 381/2007 challenging

the order passed by the lower Appellate Court. The petitioner had also filed Writ Petition no. 372/08 challenging the orders passed by both the Courts below dismissing the application under Order 9 Rule 13 of C.P.C. During the pendency of above two Writ Petitions, on 7.12.2009, the applicant filed Second Appeal challenging the order dated 26.4.2007 passed by the lower Appellate Court alongwith present application

seeking condonation of delay of 862 days.

5.

It is the case of the applicant that during the pendency of the

above two writ petitions he was informed by his advocate that in view of recent Supreme Court judgment, against the order dated 26.4.2007 passed by the lower Appellate Court Second Appeal will have to be filed and therefore the applicant filed Second Appeal alongwith present application seeking condonation of delay. In other words, it is the case of the

applicant that he filed two writ petitions upon legal advice and Second Appeal alongwith condonation of delay has also been filed pursuant to the advice given by his advocate. Therefore, there is sufficient cause for

condoning the delay in filing Second Appeal.

6.

On behalf of the respondent the affidavit in reply has been

filed by Shri Jose Piedade, respondent no. 4 opposing the application for condonation of delay. The application has been opposed primarily on the ground that the applicant has made incorrect statement in the application that he was not informed about the pendency of the suit before the trial Court. According to respondents, that the statement made by the

applicant that he was never intimated by his advocate about the progress

of the case is incorrect as is evident from the order dated 22.4.2008 passed by the lower Appellate Court in Miscellaneous Civil Application no. 71/2004.

7.

Mr. Dessai, learned Senior Counsel appearing for the

applicant submitted that the applicant has made out sufficient cause for condoning the delay of 862 days. According to the learned Counsel the applicant has been prosecuting his remedy against the order dated 26.4.2007 upon advice given by his advocate and it cannot be said that delay is either intentional or deliberate. Learned Counsel further

submitted that applicant has not made any false statement in support of his case for condonation of delay. Learned Counsel further submitted

that what has been mentioned in order dated 22.4.2008 by the lower Appellate Court is on the basis of the statement made by Advocate Tendulkar appearing on behalf of the defendants in the suit and as such there is no false statement made by the applicant to make out a case for condoning the delay in filing the application. According to learned

Counsel although strictly Section 14 of the Limitation Act is not applicable in the present case, the principles akin thereto would be applicable. According to learned Counsel the applicant upon legal

advised had filed writ petition challenging the order dated 26.4.2007 on 16.6.2007 well within the period of limitation for an appeal before this Court which clearly shows his bonafides and that he was prosecuting his remedy against impugned order dated 26.4.2007. Learned Counsel

therefore submitted that the time spent in prosecuting the remedy of writ petition must be excluded and the applicant having made out sufficient cause, the delay deserves to be condoned and in the event the delay is not condoned, serious prejudice would be caused to the applicant. Mr Desai fairly submitted that delay deserves to be condoned by imposing

appropriate costs on the applicant. In support of his submission he relied upon the following judgments:I. J. Kumaradasan Nair & another Vs. IRIC Sohan and others, CDJ 2009 SC 244.

8.

Per contra, Mr. Diniz, learned Counsel for the respondent nos.

1 to 4 submitted that the conduct of the applicant does not justify the delay in filing the Second Appeal. According to learned Counsel the petitioner has been prosecuting remedy of writ petition against impugned order till it was dismissed by this Court by order dated 18.10.2010 and as such it cannot be said that applicant has made out sufficient cause for

condoning the delay. According to learned Counsel the applicant has made incorrect statement that he was not aware of the progress of the suit in the trial Court and therefore delay does not deserve to be condoned. Mr. Diniz further submitted that it is difficult to believe that applicant acted on the legal advice since such an advice could never have been given by an advocate. In support of his submissions learned Counsel relied upon the following Judgments:I. II. Ram Bhawan Singh Vs. Jagdish, 1990 (4) SCC 309. Pundalik Jalam Patil(D)P by Lrs Vs. Exe. Eng. Jalgaon Medium Project & Anr. , 2008(11) JT 596.

9.

I have carefully considered the rival submissions, perused the

record and the judgments relied upon.

10.

From the perusal of the record, it is evident that against impugned

order dated 26.4.2007 the petitioner filed writ petition no. 381/2007 on 16.6.2007 which was dismissed by this Court by order dated 18.10.2010 and the applicant also filed Second Appeal against the impugned order on

7.12.2009 alongwith the present application for condonation of delay.

11.

It is the case of the applicant that he pursued the remedy of writ

petition on the advice of his advocate and Second Appeal alongwith the application for condonation of delay has also been filed on the basis of the advice given by his Advocate. No doubt, the applicant pursued the remedy by way of writ petition against impugned order till it was dismissed by order dated 18.10.2010 yet the fact remains that there is nothing on record to discredit the version of the applicant that initially he filed writ petition as per the advice of his advocate and thereafter filed Second Appeal alongwith application for condonation of delay also upon the advice of his Advocate. It is pertinent to note that Writ Petition no.381/2007 challenging the impugned order dated 26.4.2007 was filed within a period of 90 days which is the period of

limitation for filing Second Appeal. Therefore it is evident that the applicant has been pursuing his remedy against impugned order dated 26.4.2007 and that too on the advice of his advocate. No doubt, the applicant ought not to have pursued the remedy of writ petition after filing of Second Appeal but in my considered view the applicant cannot be non-suited for the same since the writ petition must have been pursued by applicant on the advice of his advocate.

12.

In the case of J. Kumaradasan Nair( Supra) the Apex Court

has held that provisions of Sections 5 and 14 of the Limitation Act shall be applied in broad-based manner and when sub-section ( 2) of Section 14
of the Limitation Act per se is not applicable, the same would not mean that

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principles akin thereto would not be applied. The Apex Court further held that in any case the provisions of Section 5 of the Limitation Act would apply.

13.

In

Pundalik Jalam Patil(supra) relied upon by learned the Apex Court has held that if any incorrect

Advocate Mr. Diniz,

statement is made by the applicant to get rid of the bar of limitation he should not be encouraged to get any premium on this false statement and on this ground alone application seeking condonation of delay deserves to be dismissed. In the present case the applicant has not made any false or incorrect statement to justify the delay in filing Second Appeal against the impugned order. In so far as the submission made by Mr. Diniz that applicant has made false statement that he was not aware about the progress of the case before the trial Court is concerned, I am of the view that such a conclusion cannot be drawn on the basis of a statement made by Mr. Tendulkar which is reflected in the order dated 22.4.2008 passed by the lower Appellate Court in MCA no. 71/2004. Therefore in my opinion the ratio of the judgment in the case of Pundalik Jalam Patil does not advance the case of respondents nos. 1 to 4.

14.

In the case of the Ram Bhawan Singh ( supra), the Apex Court

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held that the case of the applicant that he acted on the advice could not be accepted since such an advise could not have been given in good faith by any Counsel. In my opinion, the ratio of the said judgment also does not help the respondent nos. 1 to 4 in view of the factual position in the present case as mentioned herein above.

15.

No doubt, the applicant chose to pursue his remedy by way of

writ petition against impugned order dated 26.4.2007 till it was dismissed on 18.10.2010. The applicant ought to have pursued the remedy of

Second Appeal by withdrawing the said writ petition but the fact remains that the applicant did so on the advice of his advocate and as such it would be too harsh to dismiss the application for condonation of delay on this ground alone. In my opinion it would be in the interest of justice to condone the delay by imposing substantial costs against the applicant.

16.

For the reasons aforesaid, delay of 862 days in filing the

Second Appeal against the impugned order dated 26.4.2007 is condoned subject to the applicant paying costs of Rs.10,000/- (Rupees ten thousand only) in favour of respondent nos. 1 to 4 who have contested the application. The costs shall be deposited by the applicant in this Court

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within a period of four weeks. Liberty to the respondent nos. 1 to 4 to withdraw the costs, after they are deposited.

17.

Application stands disposed of in the aforesaid terms.

A. P. Lavande, J. vn*