Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another - Court Judgment

Excerpt:

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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	'title_for_layout' => 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | ',
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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
			'authreffered' => null,
			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
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			'judge' => 'U.V. BAKRE',
			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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oral judgment: 1. heard mr. narvekar, learned counsel appearing on behalf of the petitioners and mr. ramani, learned counsel appearing on behalf of the respondents. 2. rule. by consent, rule is made returnable and heard forthwith. 3. by this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned district judge-ii, south goa, margao (appellate court) in civil miscellaneous application no. 16/2013 and also the order dated 30/10/2012 passed by the learned civil judge, senior division, quepem (trial court) in civil miscellaneous application no. 9/2012/a. 4. the petitioners were the defendants and the respondents were the plaintiffs in regular civil suit no.64/2009/a. parties shall, hereinafter, be referred to as per their status in the said civil suit......

Judgment:

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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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		'counselplain' => null,
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		'court' => 'Mumbai Goa',
		'court_type' => 'HC',
		'decidedon' => '2014-04-04',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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Oral Judgment:

1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
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			'decidedon' => '2014-04-04',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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		'court' => 'Mumbai Goa',
		'court_type' => 'HC',
		'decidedon' => '2014-04-04',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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2. Rule. By consent, Rule is made returnable and heard forthwith.

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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
			'authreffered' => null,
			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
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			'decidedon' => '2014-04-04',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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		'counselplain' => null,
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		'court' => 'Mumbai Goa',
		'court_type' => 'HC',
		'decidedon' => '2014-04-04',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.

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			'id' => '1144428',
			'acts' => null,
			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
			'authreffered' => null,
			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
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			'decidedon' => '2014-04-04',
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			'judge' => 'U.V. BAKRE',
			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
		'casenote' => '',
		'caseanalysis' => null,
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		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Mumbai Goa',
		'court_type' => 'HC',
		'decidedon' => '2014-04-04',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.

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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judge' => 'U.V. BAKRE',
			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'ratiodecidendi' => null,
			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Mumbai Goa',
		'court_type' => 'HC',
		'decidedon' => '2014-04-04',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.

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			'judge' => 'U.V. BAKRE',
			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'ratiodecidendi' => null,
			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
		'citingcases' => null,
		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Mumbai Goa',
		'court_type' => 'HC',
		'decidedon' => '2014-04-04',
		'deposition' => null,
		'favorof' => null,
		'findings' => null,
		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.

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			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
			'court_type' => 'HC',
			'decidedon' => '2014-04-04',
			'deposition' => null,
			'favorof' => null,
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			'judge' => 'U.V. BAKRE',
			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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		'court' => 'Mumbai Goa',
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		'decidedon' => '2014-04-04',
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		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.

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			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
			'court_type' => 'HC',
			'decidedon' => '2014-04-04',
			'deposition' => null,
			'favorof' => null,
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			'judge' => 'U.V. BAKRE',
			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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			'respondent' => 'Pradeep D. Chodnekar and Another',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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	'Judgement' => array(
		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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		'court' => 'Mumbai Goa',
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		'decidedon' => '2014-04-04',
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		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
			'authreffered' => null,
			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'counselplain' => null,
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			'court' => 'Mumbai Goa',
			'court_type' => 'HC',
			'decidedon' => '2014-04-04',
			'deposition' => null,
			'favorof' => null,
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			'judge' => 'U.V. BAKRE',
			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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$title_for_layout = 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | '
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		'id' => '1144428',
		'acts' => null,
		'appealno' => 'Writ Petition No. 446 of 2013 ',
		'appellant' => 'Chandrakant Pednekar and Another',
		'authreffered' => null,
		'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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		'court' => 'Mumbai Goa',
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		'decidedon' => '2014-04-04',
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		'judge' => 'U.V. BAKRE',
		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
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9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case œShriNivruti G. Ahire Vs. State of Maharashtra and others?, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.

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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Pradeep D. Chodnekar and Another',
		'sub' => null,
		'link' => null,
		'circuit' => null
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	(int) 1 => 'chandrakant-pednekar-vs-pradeep-chodnekar'
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 38
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10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
		'observations' => null,
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		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Pradeep D. Chodnekar and Another',
		'sub' => null,
		'link' => null,
		'circuit' => null
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	(int) 1 => 'chandrakant-pednekar-vs-pradeep-chodnekar'
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 38
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11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.

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	'title_for_layout' => 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | ',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Pradeep D. Chodnekar and Another',
		'sub' => null,
		'link' => null,
		'circuit' => null
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	(int) 1 => 'chandrakant-pednekar-vs-pradeep-chodnekar'
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 38
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12. I have gone through the material on record and considered the rival submissions.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.

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			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => null,
		'pubs' => null,
		'ratiodecidendi' => null,
		'respondent' => 'Pradeep D. Chodnekar and Another',
		'sub' => null,
		'link' => null,
		'circuit' => null
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	(int) 1 => 'chandrakant-pednekar-vs-pradeep-chodnekar'
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 38
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14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:

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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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œThe defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?

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	'title_for_layout' => 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | ',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.

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	'title_for_layout' => 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | ',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
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16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
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17. In the case of œCollector, Land Acquisition, Anantnag Vs. Katiji?, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:

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			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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œ3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression œsufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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œAny appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?

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	'title_for_layout' => 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | ',
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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
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			'decidedon' => '2014-04-04',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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3. œEvery day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?

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	'title_for_layout' => 'Chandrakant Pednekar and Another Vs Pradeep D Chodnekar and Another - Citation 1144428 - Court Judgment | ',
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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'court' => 'Mumbai Goa',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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18. In the case of œN. Balkrishnan Vs. M. Krishnamurthy?, [AIR 1998 SC 3222], the Apex Court has held as under:

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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œ11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'ratiodecidendi' => null,
		'respondent' => 'Pradeep D. Chodnekar and Another',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
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19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression œsufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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20. In the result, the petition is partly allowed.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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(a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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(b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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(c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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(d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.

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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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(e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.

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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'decidedon' => '2014-04-04',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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(g) Rule is made absolute in the aforesaid terms.

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			'id' => '1144428',
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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'casename' => 'Chandrakant Pednekar and Another Vs. Pradeep D. Chodnekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
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21. The petition stands disposed of accordingly.

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			'appealno' => 'Writ Petition No. 446 of 2013 ',
			'appellant' => 'Chandrakant Pednekar and Another',
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			'judgement' => '<p style="text-align: justify;">Oral Judgment:<p style="text-align: justify;"> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p style="text-align: justify;"> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p style="text-align: justify;"> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p style="text-align: justify;"> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p style="text-align: justify;"> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p style="text-align: justify;"> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p style="text-align: justify;"> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p style="text-align: justify;"> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p style="text-align: justify;"> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p style="text-align: justify;"> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p style="text-align: justify;"> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p style="text-align: justify;"> 12. I have gone through the material on record and considered the rival submissions.</p><p style="text-align: justify;"> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p style="text-align: justify;"> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p style="text-align: justify;"> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p style="text-align: justify;"> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p style="text-align: justify;"> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p style="text-align: justify;"> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p style="text-align: justify;"> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p style="text-align: justify;"> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p style="text-align: justify;"> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p style="text-align: justify;"> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p style="text-align: justify;"> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p style="text-align: justify;"> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p style="text-align: justify;"> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p style="text-align: justify;"> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p style="text-align: justify;"> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p style="text-align: justify;"> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p style="text-align: justify;"> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p style="text-align: justify;"> 20. In the result, the petition is partly allowed.</p><p style="text-align: justify;"> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p style="text-align: justify;"> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p style="text-align: justify;"> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p style="text-align: justify;"> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p style="text-align: justify;"> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p style="text-align: justify;"> (g) Rule is made absolute in the aforesaid terms.</p><p style="text-align: justify;"> 21. The petition stands disposed of accordingly.</p>',
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		'judgement' => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.</p><p> 2. Rule. By consent, Rule is made returnable and heard forthwith.</p><p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.</p><p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.</p><p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.</p><p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.</p><p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.</p><p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.</p><p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.</p><p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.</p><p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.</p><p> 12. I have gone through the material on record and considered the rival submissions.</p><p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.</p><p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:</p><p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?</p><p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.</p><p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.</p><p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:</p><p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-</p><p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?</p><p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.</p><p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.</p><p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.</p><p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.</p><p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.</p><p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?</p><p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:</p><p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.</p><p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.</p><p> 20. In the result, the petition is partly allowed.</p><p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.</p><p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.</p><p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.</p><p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.</p><p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.</p><p> (g) Rule is made absolute in the aforesaid terms.</p><p> 21. The petition stands disposed of accordingly.</p>',
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		'respondent' => 'Pradeep D. Chodnekar and Another',
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$content = array(
	(int) 0 => '<p>Oral Judgment:<p> 1. Heard Mr. Narvekar, learned Counsel appearing on behalf of the petitioners and Mr. Ramani, learned Counsel appearing on behalf of the respondents.',
	(int) 1 => '<p> 2. Rule. By consent, Rule is made returnable and heard forthwith.',
	(int) 2 => '<p> 3. By this writ petition, the petitioners have challenged the order dated 23/04/2013 passed by the learned District Judge-II, South Goa, Margao (Appellate Court) in Civil Miscellaneous Application No. 16/2013 and also the order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem (Trial Court) in Civil Miscellaneous Application No. 9/2012/A.',
	(int) 3 => '<p> 4. The petitioners were the defendants and the respondents were the plaintiffs in Regular Civil Suit No.64/2009/A. Parties shall, hereinafter, be referred to as per their status in the said Civil Suit.',
	(int) 4 => '<p> 5. The plaintiffs had filed the said suit for eviction of the defendants from the suit portion situated in 'Chodnekar Building' at Bepquegal, Churchorem, Goa; for mesne profits and for payment of arrears of licence fee. The said suit proceeded ex-parte and came to be decreed by judgment and order dated 31/08/2010, passed by the Trial Court. Plaintiff no.1 then filed Execution Application bearing Regular Execution No. 13/2012/B for execution of the decree dated 31/08/2010 passed in the said Regular Civil Suit No. 64/2009/A.',
	(int) 5 => '<p> 6. According to the defendants, they had received summons dated 21/12/2009 directing them to appear before the Trial court on 06/01/2010 in the said Regular Civil Suit No. 64/2009/A. They engaged services of the Advocate F. Rebello to appear on their behalf, but the said Advocate did not attend the matter on any date after filing the Vakalatnama on 27/01/2010, due to which, the said suit proceeded ex-parte and was disposed of by ex-parte judgment dated 31/08/2010. The defendants alleged that they were completely unaware of the fact that the said Advocate F. Rebello was not appearing in the matter and they were under bona fide impression and belief that the said Advocate was appearing before the Trial Court and that they had regularly enquired with the said Advocate and the defendants were always informed that the presence of the defendants was not required in the matter. They further stated that after receiving summons in the execution proceedings, they engaged services of Advocate Shri Anand Gaonkar and thereafter they filed an application, under Ordr IX Rule 13 of C.P.C., for setting aside the ex-parte decree and along with the same, they filed an application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. It was alleged that the delay in filing the application for setting aside the ex-parte decree was of approximately 700 days and was due to the inaction on the part of the Advocate of the defendants and the same could not be attributed to any deliberate action of the defendants.',
	(int) 6 => '<p> 7. However, by order dated 30/10/2012, passed by the Trial court, the said Civil Miscellaneous Application No. 9/2012/A for condonation of delay came to be dismissed. The petitioners filed an appeal against the said order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A along with Civil Miscellaneous Application No. 16/2013/II before the Appellate Court for condonation of delay of 50 days in filing the appeal. The learned Appellate Court dismissed the said Civil Miscellaneous Application No. 16/2013/II by order dated 23/04/2013. Hence, the present writ petition.',
	(int) 7 => '<p> 8. Insofar as the impugned order dated 23/04/2013 of the Appellate Court, is concerned, according to the learned Counsel for the defendants, the Court, while considering the application for condonation of delay in filing the appeal, erroneously construed that the defendants had not been diligent and had deliberately delayed the proceedings in order to take the benefit of occupying the suit premises. Learned Counsel submitted that the Appellate Court ignored the fact that the defendants had vacated the suit premises in the year 2001 pursuant to the orders of the High Court in Writ Petition No. 148/1997. Counsel for defendants stated that defendant no.1 had suffered Paralytic Stroke and was completely bedridden and, therefore, was unable to follow up with concerned Advocate. The learned counsel submitted that the Appellate Court erroneously observed that no affidavit of the concerned Doctor was filed. He therefore, urged that the impugned order dated 30/10/2012 is bad in law, illegal and arbitrary.',
	(int) 8 => '<p> 9. Learned Appellate Court proceeded on the basis that no appeal is provided under Order XLIII of C.P.C., against rejection of the application for condonation of delay in filing the application to set aside the ex-parte decree. Order XLIII, Rule 1(d) of C.P.C. provides for filing of an appeal against the order passed rejecting the application filed under Order IX, Rule 13 of C.P.C. Section 104 of C.P.C. deals with the orders from which an appeal would lie. The defendants had challenged before the Appellate Court, the order passed by the Trial Court on an application for condonation of delay. The said appeal before the learned Appellate Court was not against any order rejecting the application filed under Order IX, Rule 13 of C.P.C. Order XLIII of C.P.C. does not provide for an appeal against the order rejecting the application for condonation of delay. Learned Appellate Court relied upon the judgment of this Court in the case &oelig;<strong>Shri</strong><strong>Nivruti G. Ahire Vs. State of Maharashtra and others?</strong>, [2007(4) All M R 347], wherein it has been held that in order to entertain an application for condonation of delay, the appeal or an application in respect of which there has been delay on the part of the applicant and condonation of which is sought for, the same must be maintainable in law. Since the appeal was not maintainable, the application for condonation of delay filed by the defendants under Civil Miscellaneous Application No.16/2013 came to be dismissed, being not maintainable. There is absolutely no illegality in the said impugned order dated 23/04/2013 passed by the Appellate Court. Mr. Narvekar, learned Counsel appearing on behalf of the petitioners did not dispute the said position. Hence the question of setting aside the said order of the Appellate Court does nor arise.',
	(int) 9 => '<p> 10. However, Mr Narvekar, learned counsel appearing on behalf of the defendants, further submitted that the defendants have also challenged the order dated 30/10/2012 passed by the Trial Court. Learned Counsel submitted that the defendants had filed the application under Order IX, Rule 13 of C.P.C. in which, they had given detailed reasons as to why there was delay in filing the said application. Learned Counsel pointed out that the application for condonation of delay was supported by an affidavit filed by defendant no.1 in which, he had specifically stated that each and every submission made by him in the application for setting aside ex-parte judgment, order and decree be deemed to have been specifically incorporated in the said application in verbatim, as if reproduced therein for all practical purposes. He submitted that in spite of that, the learned Trial Court held that the delay was not at all explained. He, therefore, submitted that the said order dated 30/10/2012 was perverse, illegal and arbitrary and in the interest of justice, the same requires to be set aside. He submitted that sufficient cause for delay was shown and, therefore, the delay was bound to be condoned.',
	(int) 10 => '<p> 11. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that there was long delay of 700 days and no diligence at all was shown by the defendants. He submitted that though the defendants put the blame on some Advocate, no affidavit of that Advocate was filed and further though it was alleged that the defendant no.1 was sick, however, no medical certificate was produced. He pointed out that there was no allegation against the Advocate F. Rebello that he was in collusion with the plaintiffs. According to him, the conduct of the defendants was such that they were not entitled for any indulgence, since even before the Appellate Court, they approached after delay of about 50 days. Counsel therefore urged that the petition be dismissed.',
	(int) 11 => '<p> 12. I have gone through the material on record and considered the rival submissions.',
	(int) 12 => '<p> 13. In my view, the learned Trial Court wrongly observed that in the application for condonation of delay, the plaintiffs have not mentioned anywhere as to why there was delay of 700 days on their part. As has been rightly pointed out by the learned Counsel appearing on behalf of the defendants, the said defendants had filed an application under Order IX, Rule 13 of C.P.C. read with Section 151 of C.P.C. for setting aside the ex-parte decree dated 31/08/2010. Along with the said application, the defendants had filed the application for condonation of delay which was registered as Civil Miscellaneous Application No. 9/2012/A. This application for condonation of delay was supported by an affidavit filed by defendant no. 1 in which defendant no.1 stated that he had filed an application for setting aside ex-parte judgment, order and decree dated 31/08/2010 passed in Regular Civil Suit No. 64/2009/A and that each and every statement of facts made in the said application is true and that each and every statement made in the said application be deemed to have been specifically incorporated in the application for condonation of delay in verbatim, as if reproduced in the same for all practical purposes to avoid repetition or duplicity of work. Therefore, it was the duty of the learned Trial Court to have read the application for setting aside the ex-parte decree in the said Civil Miscellaneous Application No. 9/2012/A at least for the purposes of cause for delay.',
	(int) 13 => '<p> 14. A perusal of the said application under Order IX, Rule 13 of C.P.C., reveals that the defendants had stated therein as follows:',
	(int) 14 => '<p> &oelig;The defendants received notice of the suit filed by the plaintiffs in respect of the kiosk which was asked by the Municipality to be removed and defendant no.1, after receiving the summons, appeared before the Court on 06/01/2010 and filed an application praying for time to engage Lawyer and the matter was fixed on 27/01/2010. The defendants immediately, thereafter, engaged services of an Advocate, who appeared on 27/01/2010 before the Court and filed Vakalatnama on behalf of the defendants. Defendant no.1 supplied all the documents such as are rent receipts, order passed by Churchorem-Kakora Municipal Council dated 24/12/1998, temporary allotment order dated 04/03/1999, etc. related to the subject matter of the suit and the Advocate engaged by them prepared written statement and obtained the signatures of the defendants to file the same before the Court. It was informed by the Advocate to defendant no.1 that since the matter is of civil nature, his presence before the Court was not required. Therefore, defendant no.1 did not appear before the Court. Thereafter, defendant no.1 regularly followed up the matter with the Advocate and it was informed to him that the matter is still pending. On 25/06/2012, the defendants received notice from the Court of Civil Judge, Junior Division, Quepem and at that time, defendant no. 1 was suffering from blood pressure problem and due to ill health, could not move out and also could not contact the Advocate engaged by them in the matter. Subsequently, when defendant no.1 contacted the Advocate on record, he informed that he is not aware about the case and asked defendant no.1 himself to find out the position. The copy of the notice served upon the defendants was without any documents and, therefore, defendant no.1 contacted another Advocate and it was informed that the notice issued to the defendants was in respect of execution of Orders passed in Regular Civil Suit No.64/2009/A. Defendant no.1, thereafter, filed an application to obtain copies of roznama and the order passed and since the case was disposed of, the date was given on 18/07/2012 to make payment for certified copies and ultimately, certified copy was issued on 25/07/2012. On the said date i.e. on 25/07/2012, the defendants learnt that an ex-parte decree was passed against the defendants in that suit on 31/08/2010 and it was also learnt that the Advocate engaged by them had not contested the case, though the defendant had a good case to succeed. The Advocate engaged by them never informed that the presence of the defendants was required before the Court. The defendants were under a bona fide impression that the matter was suitably contested by the Advocate engaged. There was sufficient cause for failure of the defendants to attend the suit, when the same was called out for hearing. The defendants would suffer grave and irreparable loss, injury and hardship, if the ex-parte decree was not set aside.?',
	(int) 15 => '<p> 15. The plaintiffs had filed a short reply, before the Trial Court, to the said application for condonation of delay alleging that the same was not maintainable and that the defendants had not disclosed true and correct facts before the Court. The plaintiffs denied all the grounds taken by the defendants in not filing the application for setting aside ex-parte decree in time and urged that the defendants had failed to show good and sufficient cause to condone the delay. Thus the plaintiffs had filed reply by taking into account the grounds for delay stated by the defendants in their application under order IX rule 13 of C.P.C.',
	(int) 16 => '<p> 16. The application for condonation of delay filed by the defendants was supported by an affidavit filed by the defendant no.1, whereas reply on behalf of the plaintiffs was merely filed by their Advocate without any supporting affidavit of any of the plaintiffs.',
	(int) 17 => '<p> 17. In the case of <strong>&oelig;Collector, Land Acquisition, Anantnag Vs. Katiji?</strong>, [AIR 1987 SC 1353], the Hon'ble Apex Court has observed thus:',
	(int) 18 => '<p> &oelig;3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression &oelig;sufficient cause? employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-',
	(int) 19 => '<p> &oelig;Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.?',
	(int) 20 => '<p> 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.',
	(int) 21 => '<p> 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.',
	(int) 22 => '<p> 3. &oelig;Every day's delay must be explained? does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense pragmatic manner.',
	(int) 23 => '<p> 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.',
	(int) 24 => '<p> 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.',
	(int) 25 => '<p> 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?',
	(int) 26 => '<p> 18. In the case of <strong>&oelig;N. Balkrishnan Vs. M. Krishnamurthy?</strong>, [AIR 1998 SC 3222], the Apex Court has held as under:',
	(int) 27 => '<p> &oelig;11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time?.',
	(int) 28 => '<p> 19. Considering the above judgments of the Apex Court as also the principles laid down by the Apex Court in various other cases, it is well settled that the expression &oelig;sufficient cause? should be construed liberally so as to advance justice. A justice oriented approach is required to be adopted. In the present case, the defendants had, in my view, had shown more than sufficient cause for condoning the delay in filing the application under Order IX, Rule 13 of C.P.C. Any inconvenience, if any caused to the plaintiffs could have been made good by awarding appropriate costs. Without considering the grounds stated by the defendants, the learned Trial Court dismissed the application for condonation of delay, merely because the said grounds were not actually incorporated in the said application. The said impugned order dated 30/10/2012 passed by the Trial Court in Civil Miscellaneous Application No. 9/2012/A is bad in law, illegal, arbitrary and perverse and is liable to be quashed and set aside. The petition, therefore, deserves to be allowed insofar as the impugned order dated 30/10/2012 is concerned.',
	(int) 29 => '<p> 20. In the result, the petition is partly allowed.',
	(int) 30 => '<p> (a) The order dated 30/10/2012 passed by the learned Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 9/2012/A is quashed and set aside.',
	(int) 31 => '<p> (b) The application for condonation of delay in filing the application under Order IX, Rule 13 read with Section 151 of C.P.C. filed by the defendants is allowed, subject to costs of Rs. 10,000/- to be paid by the defendants to the plaintiffs as condition precedent for consideration of the application under Order IX, Rule 13 of C.P.C. by the Trial Court on merits.',
	(int) 32 => '<p> (c) Learned Civil Judge, Senior Division, Quepem shall register and consider the said application under Order IX, Rule 13 read with Section 151 of C.P.C. dated 03/07/2012 on merits, within a period of 30 days from the date of appearance by the parties before it.',
	(int) 33 => '<p> (d) The defendants shall be permitted to file documents, if any, in support of the said application like medical certificate, etc.',
	(int) 34 => '<p> (e) Parties to appear before the learned Civil Judge, Senior Division, Quepem on 17/06/2014 at 10.00 a.m.',
	(int) 35 => '<p> (g) Rule is made absolute in the aforesaid terms.',
	(int) 36 => '<p> 21. The petition stands disposed of accordingly.',
	(int) 37 => ''
)
$paragraphAfter = (int) 1
$cnt = (int) 38
$i = (int) 37
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