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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 11/2010
Amar Singh s/o Harisingh Thakur
Aged about 65 years
occu: Business
R/o Plot No. 368 Shrinagar, Nagpur. ... ...APPELLANT
v e r s u s
1. Shri Tulshiram s/o Shri Kisan Ingle
Aged about 65 years
occupation : agriculturist
R/o Plot No.36, Lane No.3
Tajnagar, Nagpur.
2. Smt. Mangalabai w/o Digamber Meshram
Aged about 42 years, occu: Agril.
R/o Old Subedhari Layout
Plot No. 42, Nagpur.
3. Shri Digamber s/o Balkrishna Meshram
Aged 45 years, occu: Business
R/o Old Subhedhar Layout Nagpur... ...RESPONDENTS
...........................................................................................................................
Mr. Shyam Dewani, Adv.for appellant
Mr. R.G.Vaidya, Adv.for Respondent no.1
Mr R L Khapre, Adv.for Respondents 2 and 3
...........................................................................................................................
CORAM: A.P.BHANGALE, J.
DATED : 16th June,2010
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JUDGMENT :
By means of this Second Appeal, the appellant is praying
for quashing and setting aside the order dated 28.1.2008 passed in
Miscellaneous Civil Application (MCA) No.207/2007 passed by learned
Ad-hoc District Judge-3, Nagpur.
2. Perused the impugned order whereby the learned Judge of
the Court below was pleased to reject the application for condonation
of delay.
3. The facts briefly mentioned are that, the appellant herein
had filed a suit for specific performance of contract which was entered
on 21.1.1997 and 17.11.2004 for purchasing the land admeasuring
3.24 acres. The suit was filed on 15.5.2006. In that suit, the
respondent nos. 2 and 3 moved an application for intervention claiming
that Respondent No.2 purchased half portion of the land from wife of
Respondent No.1 during her lifetime through the power of attorney
holder of wife of Respondent No.1 (from Respondent No.3 herein).
The reference was made to previous litigation i.e. Special Civil Suit
No. 569/2004. In that application concerning the land in question as
also counter claim which was made by respondent nos. 2 and 3
against the decree which was passed in Spl.Civil Suit No. 569/2004, the
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respondent no. 1 had claimed adversely to the right of the respondent
no.2; but on 26.10.2005 the appeal was withdrawn clandestinely
by respondent no.1. Thus, relying upon the judgment passed in Spl.Civil
Suit No. 569/2004 the respondent nos. 2 and 3 moved an
application for intervention claiming that the said judgment had
attained finality.
4. The appellant who was aggrieved by the said judgment and
decree passed in Spl.Civil Suit No. 569/2004, preferred an
application seeking permission of the Court to file appeal along with
an application for condonation of delay, so as to challenge the judgment
and order (which was passed in Spl.Civil Suit No. 569/2004).
However by the impugned order dated 28.1.2008, the learned Judge of
the Court below was pleased to reject the MCA No.207/2007 and
consequently the prayer for condonation of delay. The appellant had also
preferred Writ Petition in order to challenge the impugned order.
However, the appellant chose to withdrawn the Writ Petition in view of
the remedy available to file Second Appeal challenging the said order.
5. The appellant raised substantial question of law, firstly , as to
whether the learned Judge was right in adopting a technical approach
while rejecting application for condonation of delay and secondly,
whether the course adopted by the learned Judge of the Court below was
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was in accordance with law laid down by this Court in case of Holya
Lasha Mahale and another vs. Raghunath Holya Mahale
reported in 2007 (1) Bom.C.R. 506 : 2006 (5) Mh.L.J. 80).
6. Heard admissions at the Bar and also perused the impugned
order in the light of the questions of law raised above.
7. It does appear that the appellant came to know about the
previous litigation i.e. SCS No. 569/2004 while the said suit was
referred to in the judgment, by the respondents during pendency of
the suit for specific performance of contract, filed on 15.5.2006. It is
not disputed before me that the delay condonation application was
rejected by learned Ad-hoc District Judge-3 Nagpur vide order below
MCA No. 207/2007 without recording evidence of the parties or without
calling upon parties to file their affidavits. Learned counsel for the
appellant made a reference to Holya Mahale’s case (supra) and
submitted that in view of O.XIX R.1 of the Civil Procedure Code, any
Court may at any time for sufficient reason order that any particular
fact or facts may be proved by affidavit, or that the affidavit of any
witness may be read at the hearing on such conditions as the Court
thinks reasonable; provided that where it appears to the Court either
party bona fide desires production of witness for cross-examination, and
that such witness can be produced for cross-examination, an order shall
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not be made authorising the evidence of such witness to be given by
affidavit. This Court in paragraph 6 of Holya Mahale’s case ( supra )
observed as below :
“6. Thus, the Court can read the evidence
led by way of the affidavit after having recorded the
sufficient reasons for accepting such affidavits and, if
no such order is passed by the Court, the Court is
under obligation to follow the regular procedure of
recording the evidence by way of examination-in-
chief and cross-examination. In the present matter,
it is further noticed that none of the parties have
filed pursis informing the Court that the evidence is
closed by either side. Thus, it is transpired that the
matter is disposed of simply on the basis of the
pleadings of the parties without recording of
evidence in the Court and/ or obtaining evidence
as per order IXI Rule 1 of the Civil Procedure Code,
1908. In the absence of pursis of the parties that they
do not intend to lead evidence and/ or they have
closed evidence, it was inappropriate on the part of
the First Appellate Court to dispose of the matter on
the basis of the pleadings of the parties simpliciter.
Therefore, on this aspect of the matter, the order
passed by the First Appellate Court suffers from a
procedural drawback and requires to be set aside. It is
accordingly set aside.”
Thus, this Court was pleased to remand the case to the first Appellate
Court by setting aside the delay condonation application after
recording evidence of the parties in the Court /or by way of affidavit
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after passing an order under O.XIX R. 1 of CPC.
8. Learned counsel for the appellant also submitted that in the
matter of condonation of delay, the Courts are required to adopt a
liberal approach as per the guidelines mentioned in Collector, Land
Acquisition, Anantnag and another vs. Mst. Katiji and others
reported in AIR 1987 SC 1353. In Para no.5 of the said judgment,
the Hon’ble Supreme Court has laid down the following five principles :-
“(1)
Ordinarily a litigant does not stand to
benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest that
can happen is that a cause would be decided on merits
after hearing the parties.
(3) “Every day’s delay must be explained” does not
mean that a pedantic approach should be made. Why
not every hour’s delay, every second’s delay? Thedoctrine must be applied in a rational common sense
pragmatic manner.
(4) When substantial justice and technical
considerations are pitted against each other, cause ofsubstantial justice deserves to be preferred for the other
side cannot claim to have vested right in injustice
being done because of non-deliberate delay.
(5) There is no presumption that delay is
occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant
does not stand to benefit by resorting to delay. In fact
he runs a serious risk.”
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It appears that this ruling was also followed in Sonerao S. Patil vs.
Godavaribai : 1999 (2) Mh.L.J. Page 272.
9. Per contra, learned counsel for respondents 2 & 3 submitted
that each day’s delay is required to be explained. He submitted that
in the facts and cirumstances the impugned order was correctly passed
and he prayed for dismissal of the appeal.
10.
I have considered the submissions as also citations relied
upon and the principles mentioned above. In my view, in view of
O.XIX R.1 CPC and in view of the observations made in Holya
Mahale’s case (supra), it was necessary for the learned Ad-hoc District
Judge- 3 Nagpur to call upon the parties to file affidavit or, at least, to
record their oral evidence instead of adopting a pedantic approach of
refusing to condone delay in the facts and circumstances of the case.
Therefore, the question nos. 1 and 2 posed above must be answered
in the negative. The learned Ad-hoc District Judge-3 Nagpur can
decide the application on the basis of affidavit filed or, on the basis of
oral evidence adduced by the parties, which is required to be recorded
in order to pass final order below application for condonation of delay so
as to ensure its just and final disposal in accordance with law, in the
facts and circumstances of the present case. Hence the following order :
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The Second appeal is allowed. The impugned order dated
28.1.2008 passed by learned Ad-hoc District Judge-3, Nagpur is
hereby set aside. Misc. Civil Application No.207/2007 is remanded to
the Court of District Judge Nagpur for final disposal in accordance with
law, bearing in mind the observations made above. Respective parties
to cooperate with learned Judge of the Court below for early disposal of
the Application. Second Appeal is disposed of accordingly.
JUDGE
sahare
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