Imposition Of Costs Cannot Be Substituted For Absence Of Reasons To Condone The Delay: Bombay High Court

The Bombay High Court has held that imposition of costs cannot be substituted for absence of reasons to condone the delay.

The Court was considering a Civil Revision Application against an order by which an Application for condonation of delay of 2325 days for restoring the civil appeal was allowed.

The single bench of Justice Vrushali V. Joshi observed, "As regards the directions to pay the costs is concerned, it is already noted that the costs can be ordered subject to there being any reasonable ground to condone the delay. By imposing of costs all the requirements of furnishing sufficient cause cannot be dispensed with. Costs cannot be substituted for absence of reasons to condone the delay. The rights that had accrued in favour of the petitioner in view of the decree in his favour are also required to be taken into consideration. Therefore, in absence of any reason which the non-applicants have furnished in the application for condonation of delay, the delay in filing the restoration application could not have been condoned...."

The Applicant was represented by Advocate S.A. Mohta while the Respondent was represented by Advocate S.B. Mohta.

Facts of the Case

The non-applicants preferred a Civil Suit for grant of temporary injunction and execution of sale deed and the Applicant filed the counter claim seeking possession in said civil suit. Later the suit was withdrawn, however, the counter claim filed by the Applicant was allowed to be continued. It was allowed by judgment and decree whereby the non-applicants were directed to restore the possession of the property to the Applicant.

The Appeal against the same remained pending for more than 13 years and was subsequently dismissed for want of prosecution. Therefore, restoration application along with condonation of delay was filed by the non-applicants. The reason given was that the Non-Applicant No. 1 was in Ratnagiri and he was not knowing about the dismissal of the suit. The trial Court restored the suit by condoning the delay of 2325 days.

Counsel for the Applicant stated that the non-applicants have not filed on record any reason for delay except the non-applicant No.1 there are three other non-applicants, knowing about the pendency of the proceedings, however, they have not taken any efforts to contact the lawyer and why lawyer did not take care of said proceedings, is also not mentioned. It was averred that except oral statement there is no any evidence to show that during the said period the non-applicant No.1 shifted to Ratnagiri and though he was served with notice of execution proceedings in the month of July 2017 the restoration application was filed on February 2018 without explaination.

Reasoning By Court

The Court noted that while deciding the delay it is necessary to consider the sufficient cause for condoning the delay and referred to Supreme Court's ruling in N. Balakrishnan V/s. M. Krishnamurthy, 1998.

"There is inordinate delay of 2325 days. Why the other non-applicants have not taken any efforts to contact the lawyer is not mentioned and only the reason given is that the applicant No.1 was the only person who was looking after the legal proceedings is not sufficient cause to condone the inordinate delay of 2325 day," the Court observed.

Regarding the directions to pay the costs, the Court observed that the costs can be ordered subject to there being any reasonable ground to condone the delay and cannot be cannot be substituted for absence of reasons to condone the delay.

The Application was accordingly allowed.

Cause Title: Laxman Motiram Barai vs. Sheikh Kamruzama (2025:BHC-NAG:7091)

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