1IN THE HIGH COURT OF BOMBAY AT GOA. MISCELLANEOUS CIVIL APPLICATION NO.1013 OF 2009 IN STAMP NUMBER MAIN NO.3866 OF 2009. Mr. Suresh G. Ramnani, s/o. Gobindram J. Ramnani, about 59 years old, married, Indian national, resident of Wing “E”, Room No.19, 4th Floor, Mithul Enclave, Opp. Jijamata, Mahul Rd, Chembur, Mumbai 400 074, through his constituted Power of Attorney, Smt. Rekha Gawri, major, Indian National, resident of 9/4, Shivpuri, Chembur Naka, Mumbai -400071. …....... Versus 1 Mrs. Aurelia Ana da Piedade Miranda alias Araiyo Alvares, SEFAA Vidyanagar, Aquem, Margao-Goa ( expired, rep. by L.R.'s) Applicant. 1(i) Ian Karl Alvares, r/o Scotland, Great Britain, and C/o. Mario Alvares, SEFAA Vidyanagar, 417. Vidyanagar. r/o. Pajifond. r/o. 1(ii) Lalita Alvares. Margao. C/o. Margao-Goa. Mr. Rua Abade Faria. 4 5 6 …. Miranda e Pinto. Guirdolim.2 Aquem.. Aquem. Budasab Mulla. resident of Junta Quarters. Rua Abade Faria. Chandor. son of Yabheya Prassad Shivasta. Jose Savio da Piedade. 3 Maria Amelia da Piedade.. 396. C-2-20. Opp. Araiyo SEFAA.. New Township. Margao Goa. 417. Nanba & Shivram Milkman's House. Kirshnapati Raia. Goa. MargaoGoa.. Rammani & Associates. G. SEFAA Vidyanagar. 2 Mario Jose Alvares.. . Aquem. Margao. aged about 45 years. Albuquerque Pinto. married. Salcete Goa. aged about 50 years. Margao. Goa. Respondents. 2003 passed by the learned Civil Judge Junior Division. 21/1985/C filed by respondent nos. Margao in Civil Miscellaneous Application no. the applicant filed an application for setting aside ex-parte decree under Order 9 Rule13 . Advocate for the applicant.2003. Gaonkar. Pronounced on: .2007 passed by the District Judge.J Reserved on: -2nd May. An ex-parte decree came to be passed against applicant on 26. Margao in Regular Civil Suit No. 3.8. Mr. 2011.3 Mr. 1 to 4.1(c) in Regular Civil Suit No. Advocate for the Respondent nos. Senior Advocate with Mr.4. Dessai. 2. ORDER By this application. the applicant seeks condonation of delay of 862 days in filing Second Appeal against order dated 26.8. 101/2004 dismissing the application for condonation of delay in filing the appeal against ex-parte judgment dated 26.6th May. A. 1 to 4.9. the facts relevant for disposal of this application are The applicant was defendant no.2003. F. S. as under:- Briefly. 2011. On 25. Diniz. LAVANDE. A. P. Coram:-A.21/1985/C. 71/2004 challenging the said order.P. 381/2007 challenging the order passed by the lower Appellate Court.C. 3.8. The petitioner had also filed Writ Petition no.8.2004 the trial Court dismissed the said application.2009. the applicant filed Second Appeal challenging the order dated 26.2003 passed by the trial Court. By order dated 7. During the pendency of above two Writ Petitions.C. 4.4. Against Judgment and decree dated 26.4 of C.4. 372/08 challenging the orders passed by both the Courts below dismissing the application under Order 9 Rule 13 of C.101/2004.P.2007 passed by the lower Appellate Court alongwith present application . the applicant also filed First Appeal with an application for condonation of delay of 386 days bearing Civil Miscellaneous Application no. The Petitioner filed Writ Petition no. on 7. The applicant preferred Miscellaneous Civil Appeal no.12.2007 the lower Appellate Court dismissed the said application holding that applicant had not made out sufficient cause for condoning the delay. The lower Appellate Court dismissed the appeal on the ground that no sufficient case was made out by the applicant not to appear when the suit was called out for hearing. By order dated 26. In other words.4. The application has been opposed primarily on the ground that the applicant has made incorrect statement in the application that he was not informed about the pendency of the suit before the trial Court. that the statement made by the applicant that he was never intimated by his advocate about the progress . 6. On behalf of the respondent the affidavit in reply has been filed by Shri Jose Piedade. It is the case of the applicant that during the pendency of the above two writ petitions he was informed by his advocate that in view of recent Supreme Court judgment. there is sufficient cause for condoning the delay in filing Second Appeal. respondent no. against the order dated 26. According to respondents. it is the case of the applicant that he filed two writ petitions upon legal advice and Second Appeal alongwith condonation of delay has also been filed pursuant to the advice given by his advocate. 5.5 seeking condonation of delay of 862 days. 4 opposing the application for condonation of delay. Therefore.2007 passed by the lower Appellate Court Second Appeal will have to be filed and therefore the applicant filed Second Appeal alongwith present application seeking condonation of delay. 6 of the case is incorrect as is evident from the order dated 22. the principles akin thereto would be applicable. Learned Counsel further submitted that applicant has not made any false statement in support of his case for condonation of delay.2008 passed by the lower Appellate Court in Miscellaneous Civil Application no. According to learned Counsel the applicant upon legal .4.2007 upon advice given by his advocate and it cannot be said that delay is either intentional or deliberate. learned Senior Counsel appearing for the applicant submitted that the applicant has made out sufficient cause for condoning the delay of 862 days.2008 by the lower Appellate Court is on the basis of the statement made by Advocate Tendulkar appearing on behalf of the defendants in the suit and as such there is no false statement made by the applicant to make out a case for condoning the delay in filing the application.4. According to the learned Counsel the applicant has been prosecuting his remedy against the order dated 26. According to learned Counsel although strictly Section 14 of the Limitation Act is not applicable in the present case. Dessai. Mr. Learned Counsel further submitted that what has been mentioned in order dated 22. 71/2004. 7.4. 7 advised had filed writ petition challenging the order dated 26. serious prejudice would be caused to the applicant. IRIC Sohan and others. According to learned Counsel the petitioner has been prosecuting remedy of writ petition against impugned order till it was dismissed by this Court by order dated 18.2010 and as such it cannot be said that applicant has made out sufficient cause for .2007 on 16. 1 to 4 submitted that the conduct of the applicant does not justify the delay in filing the Second Appeal. 8. Diniz. Kumaradasan Nair & another Vs.4. J. Per contra. learned Counsel for the respondent nos. In support of his submission he relied upon the following judgments:I. the delay deserves to be condoned and in the event the delay is not condoned. Learned Counsel therefore submitted that the time spent in prosecuting the remedy of writ petition must be excluded and the applicant having made out sufficient cause. Mr Desai fairly submitted that delay deserves to be condoned by imposing appropriate costs on the applicant.10.4. CDJ 2009 SC 244.2007 well within the period of limitation for an appeal before this Court which clearly shows his bonafides and that he was prosecuting his remedy against impugned order dated 26.2007.6. Mr. Ram Bhawan Singh Vs. I have carefully considered the rival submissions.10. 1990 (4) SCC 309. 11. .2010 and the applicant also filed Second Appeal against the impugned order on 7.4. Jalgaon Medium Project & Anr. Pundalik Jalam Patil(D)P by Lrs Vs. Jagdish. 2008(11) JT 596. it is evident that against impugned order dated 26. perused the record and the judgments relied upon. According to learned Counsel the applicant has made incorrect statement that he was not aware of the progress of the suit in the trial Court and therefore delay does not deserve to be condoned. 10. II. Exe. Mr. 9.2007 which was dismissed by this Court by order dated 18.12.2009 alongwith the present application for condonation of delay. In support of his submissions learned Counsel relied upon the following Judgments:I.6.8 condoning the delay. Diniz further submitted that it is difficult to believe that applicant acted on the legal advice since such an advice could never have been given by an advocate. 381/2007 on 16.2007 the petitioner filed writ petition no. It is the case of the applicant that he pursued the remedy of writ . Eng. From the perusal of the record. 2007 was filed within a period of 90 days which is the period of limitation for filing Second Appeal.4. the same would not mean that . No doubt. the applicant pursued the remedy by way of writ petition against impugned order till it was dismissed by order dated 18.10. 12.2007 and that too on the advice of his advocate. No doubt.9 petition on the advice of his advocate and Second Appeal alongwith the application for condonation of delay has also been filed on the basis of the advice given by his Advocate. the applicant ought not to have pursued the remedy of writ petition after filing of Second Appeal but in my considered view the applicant cannot be non-suited for the same since the writ petition must have been pursued by applicant on the advice of his advocate.381/2007 challenging the impugned order dated 26. Kumaradasan Nair( Supra) the Apex Court has held that provisions of Sections 5 and 14 of the Limitation Act shall be applied in broad-based manner and when sub-section ( 2) of Section 14 of the Limitation Act per se is not applicable.2010 yet the fact remains that there is nothing on record to discredit the version of the applicant that initially he filed writ petition as per the advice of his advocate and thereafter filed Second Appeal alongwith application for condonation of delay also upon the advice of his Advocate.4. In the case of J. Therefore it is evident that the applicant has been pursuing his remedy against impugned order dated 26. It is pertinent to note that Writ Petition no. I am of the view that such a conclusion cannot be drawn on the basis of a statement made by Mr. In the present case the applicant has not made any false or incorrect statement to justify the delay in filing Second Appeal against the impugned order. The Apex Court further held that in any case the provisions of Section 5 of the Limitation Act would apply. statement is made by the applicant to get rid of the bar of limitation he should not be encouraged to get any premium on this false statement and on this ground alone application seeking condonation of delay deserves to be dismissed. 13. In so far as the submission made by Mr. Diniz.10 principles akin thereto would not be applied. 1 to 4. In Pundalik Jalam Patil(supra) relied upon by learned the Apex Court has held that if any incorrect Advocate Mr. Tendulkar which is reflected in the order dated 22. 71/2004. Therefore in my opinion the ratio of the judgment in the case of Pundalik Jalam Patil does not advance the case of respondents nos. Diniz that applicant has made false statement that he was not aware about the progress of the case before the trial Court is concerned.2008 passed by the lower Appellate Court in MCA no.4. the Apex Court . In the case of the Ram Bhawan Singh ( supra). 14. The applicant ought to have pursued the remedy of Second Appeal by withdrawing the said writ petition but the fact remains that the applicant did so on the advice of his advocate and as such it would be too harsh to dismiss the application for condonation of delay on this ground alone. In my opinion it would be in the interest of justice to condone the delay by imposing substantial costs against the applicant.10. delay of 862 days in filing the Second Appeal against the impugned order dated 26. For the reasons aforesaid.2007 till it was dismissed on 18. the applicant chose to pursue his remedy by way of writ petition against impugned order dated 26. 15.4. 1 to 4 in view of the factual position in the present case as mentioned herein above.(Rupees ten thousand only) in favour of respondent nos. 1 to 4 who have contested the application.2007 is condoned subject to the applicant paying costs of Rs.11 held that the case of the applicant that he acted on the advice could not be accepted since such an advise could not have been given in good faith by any Counsel.2010. In my opinion.10. The costs shall be deposited by the applicant in this Court . 16.000/. the ratio of the said judgment also does not help the respondent nos. No doubt.4. 1 to 4 to withdraw the costs. A. J. after they are deposited.12 within a period of four weeks. Liberty to the respondent nos. P. Lavande. Application stands disposed of in the aforesaid terms. 17. vn* .