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While Condoning Delay Due To Laches On Part Of Applicant, Court Must Compensate Opposite Party: Bombay HC [Read Judgment]

Nitish Kashyap
1 Nov 2017 2:46 PM GMT
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The Bombay High Court has condoned delay in institution of revision against an order of eviction by the Small Causes Court, Mumbai.

The court has also upheld the findings of the apex court in the case of N Balakrishnan vs M Krishnamurthy and directed the petitioner to pay costs of Rs. 1 lakh towards prejudice caused to the respondent.

Justice MS Sonak was hearing a writ petition filed by Dr. Ashok Mehta who challenged an order of the appeal bench of the Small Causes Court dated December 1, 2016, wherein condonation of delay in institution of revision against the judgment and decree dated January 4, 2016, was refused.

In the said judgment and decree of January 4, the Small Causes Court had directed eviction of the petitioner from the respondent’s premises. The delay in institution of revision against the said judgment was 54 days. However, the appeal bench held that sufficient cause was not shown and the reason given for delay was false.

It was argued on behalf of the petitioner that he instructed his previous advocate Mukesh Sangani to institute revision against the said judgment but due to delay on his part, revision could not be instituted within the subscribed period of limitation.

The appeal bench held that Mukesh Sangani had nothing to do with the matter and it was one Thakkar who was entrusted with the case.

However, the petitioner’s current lawyer Shivani Shah argued before the high court that her client had engaged Mukesh Sangani to instruct Thakkar. She pointed out that there was no intention to make any false statement and that this is a fit case for condonation of delay and at the highest, by imposition of some reasonable cost.

The high court noted that the apex court in N Balakrishnan vs M Krishnamurthy has held that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say such discretion can be exercised only if delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion.

It was further observed by the Supreme Court that 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, the apex court said.

Thus, Justice Sonak accepted the submission made by petitioner’s lawyer Shivani Shah, but also noted the prejudice caused to the respondent due to the delay. The court said: “Almost two years have passed since the Respondent has obtained the eviction decree. The prejudice is, therefore, required to be compensated by costs. For all this, the Petitioner, as condition precedent for condonation of delay is liable to pay costs quantified at Rs 1,00,000.”

Read the Judgment Here

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