MR. ANTONIO SEQUEIRA COUTINHO PEREIRA, R/O. MAYEM, BICHOLIM Vs. THE MAYEM NAGRIK KRUTI SAMITI, THROUGH ITS PRESIDENT, SHRI KASHINATH DONGREKAR ALIAS MAYEMKAR, RESIDING AT ALDONWADI, MAYEM, BICHOLIM GOA AND ORS.

JUDGEMENT

(1.) HEARD Mr. V. R. Tamba, learned Advocate for the applicant, Mrs. A. Agni, learned Advocate for the respondent nos. 1 to 6 and Mr. V. Rodrigues, learned Additional Government Advocate for respondent nos. 7, 8 and 10. By this application filed under Section 5 of the Limitation Act the applicant seeks condonation of delay of 1845 days in filing appeal against order dated 20.1.2005 passed by learned Additional District Judge at Mapusa in Civil Suit No. 60/2004.

(2.) IT is the case of the applicant that Civil Suit No. 60/2004 was filed by him through power of attorney Ms. Andreza alias Candida de Souza, since he was forced to be out of Goa for personal security reasons. On 20.8.2000 a mob of 200 armed persons led by respondent no.1 demolished the compound wall of his house and chapel and caused damage. Since police was not taking action, he filed Writ Petition in the High Court which was disposed of on 21.1.2002. The applicant filed Special Leave Petition before the Apex Court which was disposed of and the matter was remanded to this Court for passing appropriate orders. It is further the case of the applicant that the applicant and his attorney were continuously harassed and threatened with dire consequences and it was difficult for him to live in Goa and as such he filed above suit through power of attorney. It is further the case of the applicant that he was forced to leave Goa on account of security reasons prior to filing of the suit. The attorney is not well versed with due process of law. The applicant was forced to assign the matter to her to protect his interest. The attorney reposed faith in trial Court Advocate. It is further the case of the applicant that Advocate who was representing the plaintiff in the suit was ignoring the attorney of the applicant and her calls and she informed him about the conduct of the trial Court Advocate somewhere in the last week of February, 2010. Thereafter in first week of March, 2010, upon making inquiries applicant learnt that suit was dismissed on 20.1.2005. The Trial Court advocate did not even return the file and certified copies of the order and roznama were obtained. In support of the application, the applicant filed his own affidavit as well as affidavit of his attorney Ms. Andreza alias Candida de Souza, who has also filed affidavit on similar lines.

(3.) MR . Tamba, learned Counsel for the applicant in support of the application for condonation of delay submitted that the grounds set out by the applicant for seeking condonation of delay of 1845 days have to be accepted in the absence of any averments by the respondents that delay is malafide, dilatory or intentional. According to learned Counsel the attendance of the plaintiff was not required and as such plaintiff was entitled to rely upon his attorney who had engaged an advocate to represent the applicant but the advocate did not even bother to inform the attorney of the plaintiff about the dismissal of the suit, but on the contrary gave evasive replies. According to learned advocate, the applicant has made out sufficient cause for condoning the delay inasmuch as it is not the length of the delay but the cause shown by the party which has to be considered while considering the application for condonation of delay. According to learned advocate, there is absolutely no reason for not condoning the delay in filing the appeal and if delay is not condoned serious prejudice would be caused to the applicant. In support of his submissions Mr. Tamba relied upon following judgments: -