TMI Blog2009 (8) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... er case of the applicants that on or about 15th November, 2004, they received a letter from the Advocate Shri C.V. Korhalkar addressed to the original appellant late Vithal Chavan. The applicants came to know about the pendency of second appeal, they came to Aurangabad and contacted the concerned Advocate and informed him about the death of original appellant. The Advocate advised them to bring death certificate and heir certificate. He further told the applicants to engage some another advocate of their choice and he will be unable to handle the matter. Along with the application, copy of the letter written by the concerned Advocate is annexed. 3. The applicants returned back to the village and applied for certificates on 26.11.2004 and they received said certificates from the authorities. Immediately, the applicants rushed to Aurangabad and tried to contact the lawyer but, the lawyer was out of station. So, the applicants had no option but to return the village. It is the case of the applicants that the applicant No.1-B namely, Anil Vitthalrao Chavan was the only person doing all this exercise. The applicants No.1 and 3 were aware about this progress and were under impression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of litigation slipped from his memory. It was argued that again when applicant Anil came to Aurangabad on 7th February, 2008 and coincidently met his Advocate, then he realized about about the pendency of the second appeal and after verifying the paper with the lawyer at Nanded, he recollected the entire episode. According to the learned Counsel, the applicants cannot be said to be benefited by delaying filing of the application. On the contrary, the second appeal filed by Vitthal has remained pending for long time and consequently, same was not decide. According to the learned Counsel for the applicant, on perusal of the contents of the application, it is clear that the delay in filing the said application was unintentional and in no way the delay was beneficial to the applicants and therefore, in the interest of justice, the delay is required to be condoned. He further submitted that there is series of decisions of the Supreme Court and this Court which indicate that in case of application for condonation of delay, what is required to be seen is the averment made in the application and not the length of the delay caused in filing the application. According to the learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the primary function of the court is to adjudicate the dispute between the parties and to advance substantial justice. The learned Counsel further placed reliance on the reported judgment of this Court in the case of Sonerao Sadashivrao Patil and another vs. Godawaribai and others [1999 MCR 430] and submitted that length of delay is not a matter but the acceptability of explanation for the delay is the only criterion. The learned Counsel further relied on reported judgment of the Supreme Court in the case of M.K. Prasad vs. P. Arumugam [2001(7) SRJ 408] and placed reliance on paragraph 9 of the said judgment. The learned Counsel for the applicants further relied on the reported judgment of the Supreme Cort in the case of Mithailal Dalsangar Singh and ors. vs. Annabai Devram Kini and ors. [2003(6) SC 796] and submitted that, inasmuch as abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by the applicants for condonation of delay in bringing L.Rs. of deceased appellant on record has been filed by three applicants. The explanation that one applicant had met with an accident when he visited Aurangabad somewhere in the year 2004 to meet his Advocate to take steps for filing application for bringing Legal representatives on record, is not acceptable since another two applicants including real brother of applicant Anil, namely Ashok should have pursauded his advocate for filing application for bringing legal representatives on record. The learned Counsel for the respondents, therefore, would submit that if the application is perused carefully, from 2004 till filing of the application for bring L.Rs. on record the application does not disclose sufficient cause and, therefore, though the learned Counsel for the applicants relied on number of judgments of this Court as well as Honourable Supreme Court, the said judgments differs on facts and may not be applicable in the present case in view of the insufficient and vague averments in the application. In support of his contention, the learned Counsel appearing for the respondents invited my attention to the reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary at this stage to discuss each and every judgment cited before us for the simple reason that Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of sufficient cause is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of Limitation has left the concept of sufficient cause delightfully undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the Court as such. 11. Keeping in mind the above paragraph from the judgment of the Apex Court, I proceed to decide the present application. The application is filed by the applicants with prayer clause (B) praying for condonation of delay of 2945 days. The said application was filed on 3rd March, 2008. In paragraph 1 of the application it is mentioned that the appellant Vithal Chawan died on 30th October, 1999 and the present applicants being legal heirs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 It is further mentioned by the applicants that on 7th February, 2008 when the applicant Anil came to Aurangabad for some work, he coincidently met his Advocate who asked him about the progress of matter and whether he has engaged another lawyer. At that time, after verifying papers and meeting with lawyers at Nanded he recollected the entire episode. After that he immediately collected necessary documents and handed over the same to the present Advocate who immediately prepared the application and filed the same in this Court. In paragraph 8, it is mentioned that the delay of 2945 days caused in filing the application is not at all intentional and deliberate. The delay is caused because of the reasons beyond control of the applicants. There is no negligence or laches on the part of the applicants and, therefore, ultimately it is prayed that delay in filing application for bringing Legal Representatives on record should be condoned. 13. On careful perusal of the averments in the application, it is understandable that till November, 2004, the applicants were not aware about the pendency of the second appeal in this Court. However, through their Advocate they came to know abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the applicants that when the applicant Anil came to Aurangabad on 7th February, 2008, he coincidently met his advocate and then he recollected the entire episode is not supported by medical report or certificate and, therefore, I find it very difficult to accept the same. Apart from that, the younger brother of the applicant Anil should have taken steps. 15. On perusal of the averments made in the application, it cannot be accepted that from 26.11.2004 the circumstances were beyond control of the applicants and so that they could not file application for bringing legal representatives of deceased appellant on record. 16. There cannot be any dispute that what is required to be seen is the averments in the application and not the length of the delay. It is also understood that the relevant provisions of law of Limitation are required to be interpreted liberally. The judgments cited by the learned Counsel for the applicants are sufficiently hold the field but as stated in paragraph 6 of the judgment in the case of R.B. Ramlingam v. R.B. Bhvaneswari (supra), each case spells out an unique experience to be dealt by the court as such. Therefore, what follows from the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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