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Synopsis

The Supreme Court has on May 8, 2024 said an application seeking condonation of delay filed at the behest of the stranger, who is not a party to the proceedings, is totally illegal.

"If the approach as adopted by the trial court is approved, any Tom, Dick and Harry would be permitted to move an application for condonation of delay in filing an application for restoration of the suit even if he is not a party to the subject suit," a bench of Justices B R Gavai and Sandeep Mehta said.

The court allowed a plea filed by legal heirs of Vijay Laxman Bhawe, since deceased, against the Bombay High Court's order of December 14, 2022, which dismissed a revision application against an order by the Civil Judge (senior division) Thane that restored the suit already dismissed by condoning the delay.

The matter related to the subject land acquired by the Maharashtra government in year 1986 and 1988, respectively, for public purpose. The said land was handed over the said for development/execution to City Industrial Development Corporation, Maharashtra (CIDCO).

Senior advocate Mukul Rohatgi, appearing for the appellant, submitted the trial court has totally erred in entertaining the application filed at the behest of a private party. He submitted that respondent No 1, P & S Nirman Ltd and others are totally a stranger to the proceedings. 

He also contended that, when an application filed by the legal heirs of the original plaintiff, i.e. respondents No. 2 and 3 herein for condonation of delay in filing an application for restoration of the subject suit was pending since November 7, 2019, there was no occasion for trial court to have considered the application filed by a stranger subsequently on October 12, 2021.

As a matter of fact, the subject suit itself is a frivolous one. The suit land belonged to the predecessors of the appellants and it was acquired by the State and the compensation duly received by the appellants. The proceedings for enhancement are also pending before the High Court, Rohatgi said. 

He also submitted that entertaining the application at the instance of a stranger for condonation of delay in filing an application for restoration of a frivolous suit is nothing else but a travesty of justice. 

Senior advocate C A Sundaram, appearing for the respondent, submitted it has accrued a right in the lis on account of an agreement for sale on December 8, 2009 entered into between it and the legal heirs of the original plaintiff. 

He also submitted that, since respondents No.2 and 3 were not prosecuting the application for condonation of delay in filing the application for restoration of the subject suit, respondent No 1 was justified in filing such an application.

The court, however, said the approach of the trial court in entertaining the application filed at the behest of respondent No 1 is totally unsustainable in law. 

The bench said the court would not comment upon an unregistered agreement for sale as it may prejudice the rights of the parties.

"We do not appreciate the propriety in keeping the application filed by the legal heirs of the original plaintiff in 2019 pending and deciding the subsequent application filed by respondent No 1 in October 2021 within a period of six months. We do not wish to say anything more on it," the bench said.

The court held that it was of the prima facie view that the reasoning given by the trial court as well as the High Court for condoning such an inordinate delay will not come under the ambit of “sufficient cause” as has been delineated by in a catena of judgments.

The bench, however, clarified that the application filed by respondents No 2 and 3 would be considered by the trial court on its own merits in accordance with law.