RAJITA RAVINDRA DESSAI AND 3 ORSversusRATNAPRABHA ALIAS PRABHAVATI NAIK DESSAI (SINCE DECEASED THR LRS)

                                       MCA 68 of 2026




Sonam


                IN THE HIGH COURT OF BOMBAY AT GOA

               MISC.CIVIL APPLICATION NO.68 OF 2026
                                IN
                     FIRST APPEAL NO.6 OF 2026
RAJITA RAVINDRA DESSAI AND 3 ORS ... APPLICANTS
            Versus
RATNAPRABHA ALIAS PRABHAVATI NAIK
DESSAI (SINCE DECEASED THR LRS    ... RESPONDENTS


Mr. Anant Dabholkar with Ms. Kedilaya Nandini Balakrishna,
Advocates for the Applicants.



                         CORAM:- VALMIKI MENEZES, J.
                         DATED :-           6th February, 2026

P.C.:

1.      This application, for condoning eight years and seven months of
delay, in filing the Second Appeal against the Judgment and Decree
dated 01.04.2017 passed by the Ad-hoc, District Judge-2, South Goa at
Margao in Regular Civil Appeal No. 55/2025, which has upheld the
Judgment and Decree dated 29.06.2015 passed by the Civil Judge
Junior Division ‘E’ Court in Regular Civil Suit No. 32/2008/E; by the
impugned Decrees, the Civil Court and the District Court have
confirmed the Decree of demolition of the suit structure.

2.      Though the application for condonation of delay refers to delay in

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filing a First Appeal No. 342/2026(F), that Appeal has been wrongly
registered as a First Appeal, since it is an Appeal against an
Appellate Decree and ought to be registered as a Second Appeal. The
Registry is directed to re-register First Appeal No.342/2026(F) as a
Second Appeal. I have proceeded to decide the application for
condonation of delay by considering First Appeal No. 342/2026(F), to
be the Second Appeal and have accordingly considered the ground
raised in that Appeal, to determine whether, infact a substantial question
of law would arise for determination.

3.   On examining the Decrees passed by the Civil Court and the
District Court, I find that there is no substantial question that arises for
determination under Section 100 of the CPC. The suit, as filed by the
Plaintiffs, was lodged on the premise that the Plaintiffs and Defendants
were co-owners of the suit property bearing Survey No. 619/28 of
village Cuncolim. The Plaintiffs alleged that the Defendants
constructed an illegal structure in the suit property. The defence taken
by the present Appellant in the Written Statement was that construction
was carried out after obtaining consent and No Objection Certificate
dated 08.07.1988, f r o m the P l a i n t i f f to re-construct the original
structure standing on the suit property, which the Defendants claim has
been existing since time immemorial.

4.   After issues were framed, the suit went to trial. The Plaintiffs
produced several documents in evidence and stated that the structure
had been constructed in the suit property without obtaining their
consent. The Defendants have also led evidence, but have not
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produced any documentary evidence to substantiate the construction or
written consent of the Plaintiffs, which has been pleaded in the written
statement. The Trial Court upon considering this evidence, has arrived
at a categorical finding that the suit structure was illegal, without any
permission and without any consent of the Plaintiffs and accordingly,
granted a Decree of mandatory injunction to demolish the structure
raised by the Defendants in the suit property; it has also granted a
Decree of permanent injunction to restrain the Defendants from doing
any further construction in the suit property.

5.   This Judgment and Decree came to be assailed before the District
Court in Regular Civil Appeal No. 55/2015 filed on 29.07.2015, which
came to be dismissed on 01.04.2017; on re-appreciation of the evidence,
the Appellate Court has confirmed all factual findings on the existence
of a structure constructed by the Defendants without consent of the
Plaintiffs. In other words, there are concurrent findings of fact arrived
at by the Civil Court and the District Court. No infirmity can be found
with these findings, much less to entertain a Second Appeal under
Section 100, where no substantial question of law arises for
determination.

6.   Coming to the application for condonation of delay, the star
ground raised in the application is that some of the Applicants/original
Defendants have been suffering from various ailments, which include
cancer. Certain medical certificates have been produced on record to
claim that the Applicants were not in a position to lodge a Second
Appeal before this Court within the period of limitation, i.e. within
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90 days of 01.04.2017, when the District Court dismissed their First
Appeal.

7.   Another fact that needs to be taken note of is that the original
Plaintiffs filed an Execution Proceeding bearing No. 33/2018/E before
the Civil Judge Junior Division ‘E’ Court at Margao, seeking
demolition of the suit structure. This proceeding has been contested
right from the year 2018 till date by the Defendants, who have been
appearing in that proceeding for around eight years

8.   Perusing the application for condonation of delay for more than
eight years for filing this Second Appeal, I find there is no single
averment    made     in   the   application            to   justify   why   the
Applicants/Judgment Debtors before the Executing Court have
contested the Execution Proceedings, despite all their ailments for the
past eight years, but did not find it appropriate to file a Second Appeal
to contest the Decree passed by the District Court. Even if they were
found to be suffering from ailments, that they claim they have, these
ailments from the perusal of the documents produced before me are all
relatable to this period, during which the Execution Proceeding was
pending.

9.   Considering this fact, and that no explanation has been offered as
to why the Execution Proceeding was contested but no Appeal was
filed, no case has been made out for condoning the delay. It is now well
settled by the Hon'ble Supreme Court that once a right is created in
favour of the opposite party, where the remedy has been barred of

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limitation, there must be sufficient cause shown for taking away that
right. Reference may be made to Shivamma (Dead) By Lrs V/S
Karnataka Housing Board & Ors1. In the present case, the Decree of
the Appellate Court was passed way back in the year 2017, when
absolutely no explanation was offered as to how no steps were taken to
file a Second Appeal.

10. This apart, on examining the Memo of Appeal and the proceedings
before the Trial Court as also before the Appellant Court, absolutely, no
case has been made out to admit this Appeal on a substantial question
of law.

11. Considering all these facts, the application for condonation of
delay is dismissed. No case has been made out for condoning the delay
or entertaining this Second Appeal. Hence Second Appeal is also
dismissed. No order as to costs.




                                                 VALMIKI MENEZES, J.




1
    2025 SSC Online SC 1969
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