ORDER
R.M.S. Khandeparkar, J.
Heard the Advocates for the parties. Perused
the record.
1. In the facts and circumstances of the case
both the applications being required to be heard
together, were heard accordingly and are being
disposed of by this common order.
2. Rule. By consent, the rule made returnable
forthwith.
3. Civil Application No. 4437 of 2002 is for
condonation of delay in filing Civil Application
No. 1932 of 2002 and later application i.e. Civil
Application No. 1932 of 2002 is for restoration of
First Appeal No. 891 of 1995, which was dismissed on
6th October, 2001 as well as for condonation of
delay in filing the certified copy of the decree in
the said Appeal. Civil Application No. 4437 of 2002
is hereinafter referred to as the application for
condonation of delay and the Civil Application
No. 1932 of 2002 is hereinafter referred to as the
application for restoration.
4. In the proceedings in application for condonation
of delay it is the case of the Petitioners
that after the dismissal of the Appeal on 6th
October, 2001 the appellants preferred Letters
Patent Appeal No. 60 of 2001 which was disposed of on
11.3.2002 and thereafter the application for
restoration was filed on 1.4.2002 and therefore,
there was sufficient cause for condonation of delay
in filing the application for restoration.
5. As far as proceedings in the application for
restoration is concerned, it is the case of the
Petitioners that after the extension of period by
three months for enabling the Petitioners to place
on record certified copy of the decree by the order
passed by this Court on 24.1.2001, the certified
copy of the decree was actually filed in this court
on 23.3.2001. However, by order dated 22.6.2001 as
none appeared on behalf of the Petitioners in the
said Appeal and no steps were taken to explain the
delay in filing the certified copy of the decree
and the office objections in that regard were not
removed, it was ordered that the matter be placed
before the Court on 18.7.2001. Thereafter, when
the First Appeal came up for final hearing on
6.9.2001 the same was ordered to be dismissed on
the ground that inspite of giving sufficient time,
no steps were taken to file an application for
condonation of delay and therefore, the Appeal was
ordered to be barred by limitation and dismissed.
The Petitioners preferred Letters Patent Appeal
which was came up for hearing on 11.3.2002 and the
Petitioners withdrew the same stating that they
would file application before the learned Single
Judge for condonation of delay in filing the certified
copy and for restoration of the Appeal and
that the Petitioners therefore, have filed the said
application. It is further their case that after
the delivery of Judgment by the trial court on
31.7.1995 the certified copy of the order was
applied on 14.9.1995 and the Appeal was filed
without waiting for certified copy of the decree.
It is their further contention in the application
that the Appeal has already been admitted and the
Petitioners having given sufficient time to produce
the certified copy, they did not make any application
for condonation of delay and that the Appeal
having once admitted, the same could not have been
dismissed without fully hearing of the appeal and
after giving reasons for dismissal of the appeal.
6. The learned Advocate appearing for the Petitioners
has submitted that after the disposal of
the Suit by the trial court by its Judgment on
31.7.1995 an application for certified copy of the
Judgment was filed on 14.9.1995 on a printed form.
However, while applying certified copy of the
Judgment, the Advocate for the Petitioners did not
ask for the certified copy of the decree and the
application was filed only in relation to the
certified copy of the Judgment and order and this
fact was not known to the Petitioners. It was only
after the objections were raised, the Petitioners
with the help of another Advocate took out a search
of the reports and then realised that the application
dated 14.9.1995 was in relation to certified
copy of the Judgment and order and it did not
include certified copy of the decree and therefore,
filed a fresh application on 8.1.2001 and the
certified copy of the decree was made available to
the Petitioner on 22.3.2001 and it was filed in
the Court immediately on the text day i.e. on
23.3.2001. There was a bonafide mistake on the
part of the Petitioners in not filing the certified
copy of the decree alongwith the Appeal and it was
entirely on account of the fault of the earlier
Advocate who appeared for the Petitioners who had
by mistake restricted the application to the certified
copy of the Judgment and order and no asked
for certified copy of the Decree while filing the
application on 14.9.1995. Further considering the
fact that Appeal was already admitted the time was
granted to file certified copy of the decree, the
Petitioners bonafide believed that application for
condonation of delay was not required to be filed.
Accordingly, learned Advocate for the Petitioners
submitted that in the facts and circumstances of
the case, this is a fit case for invoking
discretionary power under Section 5 of the
Limitation Act 1963 and therefore, delay in placing
on record certified copy of the decree as well as
delay in filing application for restoration should
be condoned. It is further submitted that
application for restoration was filed within two
weeks after withdrawal of the Letters Patent Appeal
and it shows bonafide on the part of the
Petitioners and their interest in pursuing with the
matter.
7. The learned Advocate for the Respondents on
the other hand, has submitted that there has been
inordinate and unexplained delay of more than 4 and
1/2 years in placing on record the certified copy
of the decree and the application for restoration
does not disclose any justification for condonation
of delay. According to the learned Advocate for
the Respondents, question of condonation of delay
does not arise at all i view of the fact that the
provisions of Section 5 of Limitation Act are not
at all attracted in the case in hand. According to
the learned Advocate for the respondents question
of extension of period under Section 5 can arise
only in a case where the party files application
for certified copy of the Judgment and decree within
the period of limitation but is prevented to file
the Appeal within the period of limitation for
justifiable reason to be explained by such party
but not incase of failure on the part of the party
to take any step in the period of limitation to
file the Appeal against the Judgment pronounced by
the trial court. In that regard, failure to apply
for certified copy of the Judgment and decree
within the period of limitation is to be construed
as failure on the part of the appellant to take any
step for filing of the appeal within the period of
limitation and therefore, in such cases, question
of extension of period of limitation under Section
5 can not arise. Considering the fact that no
application for certified copy of the decree was
filed till 8.1.2001, the records disclose that the
Petitioners had not taken any step to file the
appeal within the period of limitation and hence,
question of extension of period of limitation does
not arise. It was also sought to be contended that
question of exclusion of period in limitation does
not arise. It was also sought to be contended that
question of exclusion of period in terms of
provision of law contained in Section 12, also does
not arise in the case in hand as the exclusion of
period can arise only in cases where the certified
copy is asked for within the period of limitation
and not otherwise and that has been clarified in
the explanation clause to Section 12 itself.
Reliance is sought to be placed in the decision of
the Apex Court in the matter of Udayan Chinubhai
v. R.C. Bali reported in AIR 1977 SC 2319 and of
the Division Bench of this Court in J.K. Kapur v.
Vachha & Co. .
8. Before considering the rival contentions in
the matter, it is necessary to take note of certain
undisputed facts revealed from the records. On
31.7.1995 the trial court decreed the suit being
SCC No. 6545 of 1982 filed by the Respondents for
declaration and injunction restraining the
Petitioners from entering the disturbing the
possession of the respondent/plaintiff in relation
to the suit stall which is a pan shop. On 14.9.1995
the Petitioners applied for certified copy of the
Judgment and order of the trial court. On 5.10.1995
the Petitioners filed appeal against the Judgment
of the trial court. On 6.10.1995 the matter was
mentioned before the Court thereupon it was
directed to be placed for hearing on admission on
30.10.1995, while granting interim relief in the
nature of stay of the operative portion of the
impugned decree. Matter thereafter was placed for
hearing on admission on 15.11.1995 on which date
the appeal was admission on 15.11.1995 on which date
the appeal was admitted. However, the same was
placed before the court on 13.12.1996 on account of
failure on the part of the Petitioners to remove the
office objections and there upon four weeks time
was granted to the petitioners to do the needful in
the matter. Again the matter was placed before the
Court on 24.2.1997 and six weeks time was granted
to the petitioners to file the certified copy of
the decree. Matter again appeared before the
Court on 12.12.2000 and it was noted that even
though by order dated 24.2.1997 six weeks time was
granted to the Petitioners to file certified copy
of the decree, the same was not filed till then and
therefore, it was observed that if certified copy
of the decree was not to be filed within four weeks
from that day, the First Appeal would stand
dismissed without reference to the Court and if the
same was to be filed within the specified time, the
First Appeal was ordered to be placed for
admission. Civil Application No. 315 of 2001 was
taken out by the Petitioners and it was placed
before the Court on 19.1.2001 whereupon time was
granted till 23.1.2001 for removal of all the
office objections. On account of failure to remove
office objections, the same was again placed before
the Court on 24.1.2001. On that day, the Court
ordered that the time granted by the Court for
filing certified copy vide order dated 12.12.2000
was further extended for a period of three months.
The Petitioners filed a certified copy of the decree
of the trial court on 23.3.2001. Matter was
thereafter placed before the Court on 22.6.2001.
However, none appeared on behalf of the Petitioners
or the Respondents and the Court passed the
following order:-
“None present. In the event no steps will be
taken to explain the delay and if the office
objections will not be removed the matter
should be put up before the court order on
18.7.2001.”
As nothing was done by the Petitioners to comply
with the said order, the matter was placed before
the Court on 6.9.2001 and the learned Single Judge
passed the following order:-
“Inspite of grant of sufficient time and
additional time by order dated 22.6.2001, no
steps were taken by the Appellant to move an
application for condonation of delay. Consequently,
there is no alternative but to
dismiss the appeal being barred by
limitation.”
It is also to be noted that during the pendency of
the proceedings some other applications were also
filed and they were disposed of after hearing the
parties. However, reference to them in detail is
not necessary for the purpose of decision in the
applications under consideration.
9. The materials on record therefore, undisputedly
disclose that the certified copy of the decree
was not filed alongwith the appeal against the
Judgment of the trial court. The provisions of law
contained in Order 41 Rule 1 of CPC as well as the
relevant provisions of the Appellate Side Rules of
this High Court clearly warranted at the relevant
time filing of the certified copy of the decree
alongwith the appeal. Undoubtedly, in case of any
difficulty in procuring certified copy of the
decree, the parties were permitted to move for
extension of period for filing such certified copy
of decree and undoubtedly it is a practise of the
court to grant such time in deserving cases.
Incase of failure to submit such certified copy,
the office is required to raise objection in that
regard and to bring the said objection to the
notice of the parties. Records apparently disclose
that the office had raised necessary objection for
not filing of the certified copy of the decree and
it was made known to the Petitioners and the
petitioner was granted time to place on record
certified copy of the decree and infact the court
had passed the order in that regard on 12.12.2002
clearly specifying that if the certified copy is
not filed within four weeks from that day, the
appeal would stand dismissed without reference to
that court and incase the same was to be filed, the
appeal was to be placed for admission immediately.
This period was further extended by three months by
order dated 24.1.2001.
10. Above undisputed facts undoubtedly disclose
that time to place on record the certified copy of
the decree was extended by the court till
24.4.2001. Simultaneously it also discloses that
the Court had specifically directed the matter to
be placed for admission immediately on filing of
the certified copy of the decree on record. In
other words, though initially by order dated
15.11.1995 the appeal was stated to have been
admitted, taking note of the fact that the appeal
cannot be admitted in the absence of certified copy
of the decree, the order dated 15.11.1995 directing
the admission of the appeal was modified and it was
held that the matter was required to be heard
afresh for admission in view of delay in placing on
record certified copy of the decree. This is clear
from the order dated 12.12.2000. It is nobody’s
case that while passing the order dated 12.12.2000
the earlier order dated 15.11.1995 was not brought
to the notice of this court or that the order dated
12.12.2000 was passed in ignorance of the order
dated 15.11.1995. Infact the order dated
12.12.2000 was passed in the appeal itself and
being fully aware of the order dated 15.11.1995 and
it was stated that the matter was to be placed for
hearing on admission after placing on record
certified copy of the decree.
11. From the above disclosed facts, it is apparent
that even though the time for placing on record
certified copy was extended by order dated
24.1.2001, the issued as to the entitlement of the
Petitioners to be heard in the appeal against the
decree of the trial court was kept open and being
so and having filed certified copy beyond the
period of limitation, it was necessary for the
Petitioners to explain the delay in filing the
certified copy of the decree as on account of delay
in filing certified copy which is an essential
accompaniment of the Memorandum of Appeal to construe
that the appeal to have been filed within a
period of limitation, it was necessary of the
Petitioners to justify the delay in filing the
appeal which had resulted on account of delay on
placing on record certified copy of the decree.
12. At this stage, it is necessary to consider
the contention sought to be raised on behalf of the
Respondents in relation to the provisions of
Section 5 and 12 of the Limitation Act 1963 and the
decisions sought to be relied upon in that regard.
13. The explanation clause to Section 12 provides
that in computing the period of limitation, the
time requisite for obtaining a certified copy of a
decree of an order which is required to be excluded
in terms of the provisions of the said section, any
time taken by the court to prepare the decree or
order before an application for a copy thereof is
made shall not be excluded. According to the
learned Advocate, question of exclusion of time
spent for preparation of the decree would arise
only in cases where the party takes the necessary
steps for preparation of the decree within the
period of limitation and not otherwise. In other
words, if the period of limitation prescribed for
filing of appeal is 30 days from the date of
pronouncement of the Judgment, and the party files
an application for certified copy of the decree
within such 30 days, then the period spent in
preparation of such decree can be excluded while
computing period of limitation but if steps for
obtaining certified copy are taken after the expiry
of limitation, question of exclusion of period
spent for obtaining the certified copy of the decree
does not arise at all.
14. The Apex Court in Udayan Chuimanbhai’s case
has held that:-
“Computation of limitation is predominantly
the governing factor in Section 12. In order to
achieve an easy computation of period of
limitation without hardship to litigants and
to avoid vicissitudes of time consuming
litigious exercises which the old section had
been subjected to the Explanation has been
introduced. In order to enable correct
computation of the period of Limitation under
Section 12(2) with certitude when it is provided
therein, that certain time has to be
excluded, it is then clearly provided, at the
same time, in the Explanation that a
particular period of time shall not be
excluded. The words “under this section in the
explanation are consequent relating as was
done to the governing to the section viz.
computation of period of limitation, one for
computation period of limitation 12(2) and
other for computation of time requiring in
obtaining copy of the decree under the
explanation from computation of limitation.
The explanation cannot be read in isolation.
The position may be different if a decree in
law cannot be prepared because of non
compliance with some directions in that
Judgment, the explanation does a composite
service positive as well as negative.
Positively it prescribes the mode of correct
computation. By a process of exclusion and
not explained the time before making an
application for copy. The explanation does not
warrant exclusion of certain period positively
excluded by him for the purpose of computing
the period of limitation by “excluding”
included period for the benefit of a person
prior to making application, must be
respected.”
15. The division Bench of this court in Jaddish
Krishn Kapoor’s case has held thus:-
“The entire time taken by the party in making
an application for copies from the date of the
pronouncement of the Judgment is not to be ex-cluded
even if that is an over lapping period
which is also taken by the court in drawing up
the decree. We have therefore nodoubt that the
legal position from the 1st of January 1964
clearly is that a party must apply for a copy
of the Judgment and decree within the period
of limitation prescribed for the appeal and if
he does not do so but waits beyond the
prescribed period of the limitation on the
specious excuse that the court is still
drawing up the decree, his application being
beyond limitation, the appeal that will be
filed subsequently can never be in time.”
16. Considering the law laid down by the Apex
Court and the Division Bench of this Court, it is
therefore, clear that question of giving benefit of
exclusion of a period required for obtaining
certified copy of the Judgment and decree while
filing the appeal can arise only in cases where the
party applies for certified copy of the Judgment
and decree within the period of limitation and not
otherwise. A party sleeping over his right for the
entire period of limitation and thereafter asking
for the certified copy of the Judgment and decree
cannot claim benefit of exclusion of the said
period while computing period of limitation which
he would have otherwise been entitled to under
Section 12, had he filed application for certified
copy within the period of limitation. Learned
Advocate for the Respondents is therefore justified
in contending that in case where application for
certified copy of the Judgment and decree is filed
beyond the period of limitation prescribed for
filing of the appeal the party cannot avail the
benefit of exclusion of period under Section 12 of
the Limitation Act.
17. As regards the provisions contained in Section
5 of the Limitation Act, the said section speaks of
extension of prescribed period in certain cases.
It provides that any appeal may be admitted after
the prescribed period if the appellant satisfies
the court that he had sufficient cause for not
preferring the appeal within such period. The
explanation clause thereto provides that the fact
that the appellant was misled by any order,
practice or Judgment of the High Court in
ascertaining or computing the prescribed period may
be sufficient cause within the meaning of the said
section. It is the contention of the learned
Advocate for the Respondent that question of
invoking the powers under Section 5 cannot arise
unless the party filing the appeal discloses steps
on the part of such party having been taken for the
purpose of filing the appeal within the period of
limitation and such fact would include filing of
an application for obtaining certified copy of the
Judgment and decree, and therefore, incase the
party fails to disclose any such acts on his or her
part, then such a party is not entitled to claim
any benefit under Section 5 of the Limitation Act.
18. I am afraid the arguments in this regard if
accepted would virtually defeat the very purpose of
the provisions contained in Section 5. The Courts
are fully empowered to extend the period of
limitation in a case where the appellant discloses
sufficient cause for not preferring the appeal
within the prescribed period. In other words,
sufficient cause for inaction on the part of the
appellant within the prescribed period in relation
to the filing of the appeal would justify admission
of the appeal by invoking powers under Section 5 of
the Limitation Act. The inaction on the part of
the appellant within the prescribed period in
relation to the “preferring the appeal” would
certainly include an act necessary for the purpose
of “preferring the appeal” within the meaning of
the said expression under Section 5 of the Act.
The law is very clear as regards the procedure to
be followed for the purpose of filing of the
appeal. The appeal cannot be filed without the
certified copy of the Judgment and decree.
Undoubtedly, in view of the amendment to the provisions
of Order 41 Rule 1 w.e.f. 1.7.2002 the requirement
of accompaniment of the certified copy of
the decree at the time of presentation of
Memorandum of Appeal though excluded, the necessity
of the certified copy of the decree for disposing
the appeal cannot be ruled out as various other
factors like valuation of the Appeal, the court
fee payable thereon would depend upon the bill of
cost prepared by the Registry on disposal of the
suit on the basis of the valuation and the court
fee paid in the suit. Being so the necessity of
the certified copy of the Judgment as well as of
the decree for entertaining and disposal of the
appeal cannot be considered as mere formality but
has to be considered as mandatory requirement.
Being so any step in the direction of collecting
the legally required material necessary for the
purpose of preferring the appeal would amount to
taking steps for preferring the appeal within the
meaning of the said expression under Section 5 of
the said Act. Being so, “sufficient cause for not
preferring” would also include sufficient cause for
not preferring the application for certified copy
of the decree within the period of limitation.
19. Even otherwise, thee can be cases where a
party may be totally unaware of the pronouncement
of Judgment for a period more than one prescribed
for preferring the appeal and on having learnt of
such Judgment after the expiry of such period
desires to file the appeal, is such person to be
considered to be totally debarred from preferring
the appeal? Any such interpretation would
virtually defeat the very purpose of Section 5 of
the Limitation Act. It is well settled that
condonation of delay is not the same thing like
exclusion of time under Section 12 or 14 of the
Act. It is rather extension of time which is a
matter of concession or indulgence to the applicant
which can not be claimed as a matter of absolute
right; however, Section 5 has to receive a legal
construction so as to advance substantial justice
when no negligence or want of bonafide is
imputable to the applicant. Therefore, contentions
sought to be raised on behalf of the respondent in
this regard are to be rejected.
20. Reverting to the facts of the case, it is not
in dispute that no application for certified copy
of decree was filed till 1.1.2001. The suit was
decreed on 31.7.1995. The application for restoration,
as pointed out earlier, discloses any two
grounds in support of the claim for condonation of
delay viz. firstly that the time to produce the
certified copy was extended from time to time and
last occasion was on 24.1.2001 and secondly, that
the appeal having been admitted it could not have
been dismissed. Apparently, there is no
justification for non filing of the application for
obtaining the certified copy of the decree till
7.1.2001. It is pertinent to note that apart from
the objection being raised by the office in
relation to non production of the certified copy of
the decree on record, the specific orders were
passed regarding non compliance of the said
requirement of and the order dated 24.2.1997 clearly
speaks of statement by the Counsel of the
Petitioners that the certified copy would be
placed on record within six weeks therefrom.
Evidently, it was within the knowledge of the
petitioners that the certified copy of the decree
was required to be placed on record, apart from the
fact that for the purpose of the maintainability
of the appeal, such certified copy was required to
be placed on record. Inspite of the knowledge to
the petitioner about the certified copy being
required to be placed on record, there is
absolutely no explanation as to what prevented the
petitioners from obtaining certified copy from
February-1997 till January-2001. The arguments
advanced in the course of the hearing of the matter
blaming the earlier Advocate on record for failure
to ask for certified copy of the decree in
application dated 14.9.1995 without disclosing
any cause for failure on the part of the
petitioners to obtain certified copy from February-1997
onwards inspite of the full knowledge about
the requirements thereof and attempt to blame the
earlier Advocate of the petitioners in that regard
clearly reveal lack of bonafide on the part of the
petitioners.
21. Contention that the petitioners were granted
time to produce the certified copy of the decree
would itself disclose sufficient cause for
condonation of delay is devoid of substance. As
already observed above, by order dated 12.12.2000
it was made specifically clear that on account of
failure on the part of the petitioners to file
certified copy of the decree alongwith the appeal
and the same was sought to be placed on record long
after the expiry of the period of limitation, the
petitioners had to justify the delay for the
purpose of admission of the appeal. The
petitioners did not bother to file any application
for condonation of delay. The hesitation on the
part of the petitioners to seek condonation of
delay cannot be said to be unintentional as records
reveal that inspite of necessary warning given to
the petitioners by order dated 22.6.2001 that on
account of failure to take appropriate steps to
explain the delay and unless office objection in
that regard is removed, the matter would be placed
for consequential order on 18.7.2001, the petitioners
knowing well the consequences of their failure
to take appropriate steps did not bother to move
any application for condonation of delay and consequently
appeal was dismissed on 6.9.2001. Even
thereafter attempt was made to challenge that order
without explaining the delay by filing Letters
Patent Appeal and only when the Letters Patent
Appeal came up for hearing it was withdrawn on the
basis that the petitioners would file necessary
application for condonation of delay.
22. Even after submitting before the Division
Bench that the Petitioners would file necessary
application for condonation of delay, the petitioners
did not bother to give any explanation for
condonation of delay in their application for
restoration, as is evident from the contents of
the said application for restoration. Rather they
have choosen to contend the order of dismissal of
the appeal to be illegal and the condonation of
delay in filing the certified copy of the decree to
be a matter of right and as a matter of course on
the basis of time that was granted to place on
record the said certified copy. The matter does
not end there. The petitioners even do not
hesitate to make incorrect statement in the said
application for restoration in relation to the
application which was filed by the Advocate on
14.9.1995. Knowing well that the application which
was filed on 14.9.1995 was only in relation to the
certified copy of the Judgment and order, a solemn
statement is made in para No. 1 of the application
for restoration that:-
“Application for certified copy of the decree
was made on 14.9.1995 in the City Civil Court.
The certified copy of the decree was not
obtained as the proceedings were not traceable
or mis-placed in the Court.”
The statement has been verified as true to his own
knowledge and belief by the petitioner No. 1 Raj
Narayan Singh. Nodoubt, when the matter was being
heard an attention was drawn to the said statement,
the learned Advocate for the petitioners on behalf
of the petitioners submitted that the petitioners
were seeking to tender their apology for the said
incorrect statement. Infact it is too late to
entertain any such apology on behalf of the
petitioners as regards the said incorrect
statement, as the submission in that regard has
been made only after drawing attention of the
petitioners to the said fact. The said statement is
from the application filed by the petitioners
themselves. The application was filed knowing
well that it was pertaining to the condonation of
delay in placing the certified copy of the decree
on record. The statement is in relation to the
certified copy of the decree. Being so, the
statement is very relevant statement in relation to
the matter in question and therefore, it cannot be
presumed that the petitioners did not know the
consequences of making such incorrect statement.
Be as it may, the same discloses the conduct and
the attitude of the petitioners and both these
factors are very relevant while dealing with the
application seeking a discretionary relief from
this court and more particularly when there is a
delay of merely four years in seeking certified
copy of the decree.
23. The extension of time to enable the petitioners
to place on record certified copy of the decree,
as already observed above by itself does not
amount to condonation of the delay in filing the
appeal. It is not mere lodging of the appeal that
is sufficient but the lodging has to be in
accordance with the provisions of law and by
following the procedure prescribed by the law and
not otherwise. The procedure clearly required
Memorandum of appeal to the accompanied by
certified copy of he decree and in the case in
hand Memorandum of Appeal was not accompanied by
such decree till 23.3.2001. Leave to allow the
Memorandum of Appeal to be accompanied by the
certified copy of the decree by itself cannot
amount to condonation of delay which has to be
decided by considering material on record to ascertain
whether there has been sufficient cause for
condonation of delay by applying the provisions of
law in Section 5 of the Limitation Act. An order
condoning the delay has to be judicious order and
should disclose the application of mind of the
Judge and the facts disclosed should constitute
sufficient cause for the purpose of condonation of
delay and more particularly when it is a contested
matter. Hence, merely because the party who is
allowed to place on record certified copy of the
decree and for that purpose time is granted that
itself would not tentamount to condonation of delay
in filing the appeal.
24. The contention that appeal was admitted and
therefore there was no occasion for condonation of
delay is also devoid of substance. As already
pointed out above, nothing prevents the court from
modifying its earlier order for justifiable reason
and when the party tries to obtain any relief
without complying with the mandatory provision in
relation to the procedure which is required to be
followed, the courts are fully empowered to pass an
appropriate order in exercise of inharent powers.
In the case in hand as already pointed out above
the order dated 12.12.2000 clearly discloses that
appeal was required to be heard for admission after
placing certified copy of the decree on record.
Being so, merely because the registry had placed
the appeal for the purpose of final hearing that
itself would not mean that judicial order passed by
the court would stand nullified. Mere listing of
the case alongwith matters fixed for final hearing
that itself would not decide the status of the
case. When the records apparently disclose that
the matter is still required to be heard on
admission, listing of such matters alongwith other
final hearing and even taken up for the purpose of
final hearing pursuant to listing of such matter on
the board containing the matters for the final
hearing that by itself would not disclose the stage
at which the matter stands. Being so, it cannot be
said that the matter was admitted and could not
have been disposed of without being heard finally.
That apart, considering that the appeal being
continuation of the suit and bearing in mind
provisions of Order 41 Rule 17 read with the
provisions of Section 151 and Order 17 of the Code
of Civil Procedure, the default by a party would
not restrict to non appearance of the party but
would also include a default in carrying out any
act necessary for the purpose of further progress
of the proceedings in the appeal and failure on the
part of the party to the appeal to perform such an
act would, empower the court to dismiss the appeal
for default. Once the order dated 22.6.2001
clearly required the petitioners to explain the
delay and to remove the objection and further being
required to face the consequences of failure to
explain the delay and to remove the office
objection within the specified period and the
petitioners having failed in that regard, nothing
prevented the court from dismissing the appeal for
default on 6.9.2001. Mere absence of the word
“default” in the order dated 6.9.2001 would not
make any difference.
25. Curiously, inspite of the through knowledge
of requirement and necessity of an application
disclosing sufficient cause for condonation of
delay, no such application was filed alongwith the
application for restoration and such application
was filed merely seven months after filing of the
application for restoration, and that too without
disclosing any fact justifying the delay and merely
reiterating the contents of the application for
restoration. Undoubtedly, one additional sentence
does appear in the said application to the effect
that “however inadvertently the same remained to
be filed as it is not came to the notice of the
petitioners”. Again it is pertinent to note that
one of the petitioners being the petitioner No. 3 is
holder of LL.B. degree. There is no satisfactory
explanation for delay in filing the applications.
26. In the facts and circumstances of the case
therefore, the petitioners having failed to disclose
any sufficient cause for condonation of
delay, the applications deserve to the dismissed and
are accordingly hereby dismissed with no order as
to costs.