TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 64
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....ation that notices issued by the Corporation under Section 314 of the Mumbai Municipal Corporation Act, 1888 (for short, 'the Act') for demolition of the properties specified in the plaints are illegal and not binding on them. They pleaded that the action taken by the Corporation is discriminatory and liable to be annulled because some persons whose structures were taken for road widening were allowed to construct mezzanine floor in the remaining portions of their respective properties and were also allotted alternative accommodation in the new building but they were not given similar benefit. The appellants further pleaded that they had entered into development agreements with Shamji D. Shah and Popatbhai Baghbhai Bharwad for developing the property and they will construct market for and on behalf of the Corporation. They prayed for issue of a direction to the respondent to provide shops in the market proposed to be constructed on C.T.S. No.997, Near Purnapragya High School, Bharucha Marg, Dahisar (E), Bombay. 4. In the written statement filed on behalf of the Corporation, an objection was taken to the maintainability of the suit on the ground that notice under Section 527 of the....
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....ferring the first appeal were misplaced and not traceable in spite of good efforts. The applicant submit that meanwhile concerned advocate who has appeared in the above suit was transferred from the city civil section to criminal section in the month of June 2004 and therefore loss the tract of matter and the said first appeal remained to be filed due to oversight and heavy work load. The applicant submit that concerned advocate was also transferred from criminal section to high court suit section in the month of October, 2005. The applicant submit that the concerned advocate who has appeared in the suit came to know that plaintiff has fraudulently obtained alternate accommodation under order passed by Hon'ble City Civil Court on 2.5.2003 even when respondent was given permission for constructing the mezzanine floor to the extent of structure affected by road widening. The applicant say and submit that the concerned development and thereafter immediate steps were taken to reconstruct the brief and preferred the first appeal immediately. The applicant therefore say and submit that there is delay of days in preferring the present first appeal. The applicant submit that delay in prefe....
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....ce that the respondents are claiming the right of alternative accommodation pursuant to impugned order in view of that matter, respective Addl. Municipal Commissioner directed Jt. Law Officer (City Civil Court Section) of Legal Department to study entire matters and also ascertain above appeal and its stage against the judgment and order dated 2.5.2003 passed by City Civil Court. A copy of minutes dated 2.8.2010 is annexed herewith and marked as Exhibit - G. 5. I say that though papers were misplaced and not traceable, I personally inquired with the staff of High Court (Appellate Side High Court Section of the Legal Department) on 17.8.2010, whether any appeal has been filed against the order and judgment dated 2.5.2003. I came to know on 19.8.2010, that appeal has not been filed as neither the said proceedings nor copy of order dated 2.5.2003 were put up before undersigned for drafting an appeal. I immediately directed to the concerned Managing Clerk on 19.8.2010 to file an application for certified copy of judgment and order dated 2.5.2003. Accordingly, an application for certified copy was made on 23.8.2010 and same was made available on 6.9.2010 and certified copy of order dat....
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....ized that in the absence of any denial by the Corporation that it has a battery of advocates to deal with the litigation, the transfer of Shri Ranindra Y. Sirsikar in January, 2004 to Miscellaneous Court and, thereafter, to other Courts has no bearing on the issue of delay because the suits filed by the appellants had been decided in May, 2003 and no explanation has been given as to why applications for certified copies could not be filed for 7 years and 5 months. Shri Bhasme submitted that even if one advocate / law officer was transferred from one department / division to another, nothing prevented the Corporation from taking steps to apply for certified copies of the judgment. Shri Bhasme further submitted that the story of misplacement of papers was concocted by the Corporation and the same ought to have been rejected by the High Court because the assertion made in that regard was vague to the core and no indication was given as to when the papers were traced and by whom. In support of his argument, Shri Bhasme relied upon the judgments of this Court in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation (2010) 5 SCC 459. 11. Shri Pallav Sh....
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..... In Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition: "In construing Section 5 (of the Limitation Act), it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired, the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice." 14. In Collector, Land Acquisition, Anantnag v. Mst. Katiji (supra), this ....
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....y before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do evenhanded justice on merits in preference to the approach which scuttles a decision on merits." 15. In N. Balakrishnan v. M. Krishnamu....
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....d that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss." 16. In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556, this Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub-Court in an arbitration application, observed that the law of limitation may harshly affect a p....
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....iven case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies / instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest. 19. In the light of the above, it is to be seen whether the explanation given by the respondent for condonation of more than 7 years and 3 months delay was satisfactory and whether the learned ....