{"id":69873,"date":"2002-12-12T00:00:00","date_gmt":"2002-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajnarainsingh-avadhraj-singh-vs-smt-vidyadevi-widow-of-ramraj-on-12-december-2002"},"modified":"2016-02-16T07:32:27","modified_gmt":"2016-02-16T02:02:27","slug":"rajnarainsingh-avadhraj-singh-vs-smt-vidyadevi-widow-of-ramraj-on-12-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajnarainsingh-avadhraj-singh-vs-smt-vidyadevi-widow-of-ramraj-on-12-december-2002","title":{"rendered":"Rajnarainsingh Avadhraj Singh, … vs Smt. Vidyadevi Widow Of Ramraj … on 12 December, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Rajnarainsingh Avadhraj Singh, … vs Smt. Vidyadevi Widow Of Ramraj … on 12 December, 2002<\/div>\n
Author: R Khandeparkar<\/div>\n
Bench: R Khandeparkar<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 R.M.S. Khandeparkar, J. <\/p>\n
 Heard the Advocates for the parties. Perused
\nthe record.\n<\/p>\n
1. In the facts and circumstances of the case
\nboth the applications being required to be heard
\ntogether, were heard accordingly and are being
\ndisposed of by this common order.\n<\/p>\n
2. Rule. By consent, the rule made returnable
\nforthwith.\n<\/p>\n
3. Civil Application No. 4437 of 2002 is for
\ncondonation of delay in filing Civil Application
\nNo. 1932 of 2002 and later application i.e. Civil
\nApplication No. 1932 of 2002 is for restoration of
\nFirst Appeal No. 891 of 1995, which was dismissed on
\n6th October, 2001 as well as for condonation of
\ndelay in filing the certified copy of the decree in
\nthe said Appeal. Civil Application No. 4437 of 2002
\nis hereinafter referred to as the application for
\ncondonation of delay and the Civil Application
\nNo. 1932 of 2002 is hereinafter referred to as the
\napplication for restoration.\n<\/p>\n
4. In the proceedings in application for condonation
\nof delay it is the case of the Petitioners
\nthat after the dismissal of the Appeal on 6th
\nOctober, 2001 the appellants preferred Letters
\nPatent Appeal No. 60 of 2001 which was disposed of on
\n11.3.2002 and thereafter the application for
\nrestoration was filed on 1.4.2002 and therefore,
\nthere was sufficient cause for condonation of delay
\nin filing the application for restoration.\n<\/p>\n
5. As far as proceedings in the application for
\nrestoration is concerned, it is the case of the
\nPetitioners that after the extension of period by
\nthree months for enabling the Petitioners to place
\non record certified copy of the decree by the order
\npassed by this Court on 24.1.2001, the certified
\ncopy of the decree was actually filed in this court
\non 23.3.2001. However, by order dated 22.6.2001 as
\nnone appeared on behalf of the Petitioners in the
\nsaid Appeal and no steps were taken to explain the
\ndelay in filing the certified copy of the decree
\nand the office objections in that regard were not
\nremoved, it was ordered that the matter be placed
\nbefore the Court on 18.7.2001. Thereafter, when
\nthe First Appeal came up for final hearing on
\n6.9.2001 the same was ordered to be dismissed on
\nthe ground that inspite of giving sufficient time,
\nno steps were taken to file an application for
\ncondonation of delay and therefore, the Appeal was
\nordered to be barred by limitation and dismissed.
\nThe Petitioners preferred Letters Patent Appeal
\nwhich was came up for hearing on 11.3.2002 and the
\nPetitioners withdrew the same stating that they
\nwould file application before the learned Single
\nJudge for condonation of delay in filing the certified
\ncopy and for restoration of the Appeal and
\nthat the Petitioners therefore, have filed the said
\napplication. It is further their case that after
\nthe delivery of Judgment by the trial court on
\n31.7.1995 the certified copy of the order was
\napplied on 14.9.1995 and the Appeal was filed
\nwithout waiting for certified copy of the decree.
\nIt is their further contention in the application
\nthat the Appeal has already been admitted and the
\nPetitioners having given sufficient time to produce
\nthe certified copy, they did not make any application
\nfor condonation of delay and that the Appeal
\nhaving once admitted, the same could not have been
\ndismissed without fully hearing of the appeal and
\nafter giving reasons for dismissal of the appeal.\n<\/p>\n
6. The learned Advocate appearing for the Petitioners
\nhas submitted that after the disposal of
\nthe Suit by the trial court by its Judgment on
\n31.7.1995 an application for certified copy of the
\nJudgment was filed on 14.9.1995 on a printed form.
\nHowever, while applying certified copy of the
\nJudgment, the Advocate for the Petitioners did not
\nask for the certified copy of the decree and the
\napplication was filed only in relation to the
\ncertified copy of the Judgment and order and this
\nfact was not known to the Petitioners. It was only
\nafter the objections were raised, the Petitioners
\nwith the help of another Advocate took out a search
\nof the reports and then realised that the application
\ndated 14.9.1995 was in relation to certified
\ncopy of the Judgment and order and it did not
\ninclude certified copy of the decree and therefore,
\nfiled a fresh application on 8.1.2001 and the
\ncertified copy of the decree was made available to
\nthe Petitioner on 22.3.2001 and it was filed in
\nthe Court immediately on the text day i.e. on
\n23.3.2001. There was a bonafide mistake on the
\npart of the Petitioners in not filing the certified
\ncopy of the decree alongwith the Appeal and it was
\nentirely on account of the fault of the earlier
\nAdvocate who appeared for the Petitioners who had
\nby mistake restricted the application to the certified
\ncopy of the Judgment and order and no asked
\nfor certified copy of the Decree while filing the
\napplication on 14.9.1995. Further considering the
\nfact that Appeal was already admitted the time was
\ngranted to file certified copy of the decree, the
\nPetitioners bonafide believed that application for
\ncondonation of delay was not required to be filed.
\nAccordingly, learned Advocate for the Petitioners
\nsubmitted that in the facts and circumstances of
\nthe case, this is a fit case for invoking
\ndiscretionary power under Section 5 of the
\nLimitation Act 1963 and therefore, delay in placing
\non record certified copy of the decree as well as
\ndelay in filing application for restoration should
\nbe condoned. It is further submitted that
\napplication for restoration was filed within two
\nweeks after withdrawal of the Letters Patent Appeal
\nand it shows bonafide on the part of the
\nPetitioners and their interest in pursuing with the
\nmatter.\n<\/p>\n
7. The learned Advocate for the Respondents on
\nthe other hand, has submitted that there has been
\ninordinate and unexplained delay of more than 4 and
\n1\/2 years in placing on record the certified copy
\nof the decree and the application for restoration
\ndoes not disclose any justification for condonation
\nof delay. According to the learned Advocate for
\nthe Respondents, question of condonation of delay
\ndoes not arise at all i view of the fact that the
\nprovisions of Section 5 of Limitation Act are not
\nat all attracted in the case in hand. According to
\nthe learned Advocate for the respondents question
\nof extension of period under Section 5 can arise
\nonly in a case where the party files application
\nfor certified copy of the Judgment and decree within
\nthe period of limitation but is prevented to file
\nthe Appeal within the period of limitation for
\njustifiable reason to be explained by such party
\nbut not incase of failure on the part of the party
\nto take any step in the period of limitation to
\nfile the Appeal against the Judgment pronounced by
\nthe trial court. In that regard, failure to apply
\nfor certified copy of the Judgment and decree
\nwithin the period of limitation is to be construed
\nas failure on the part of the appellant to take any
\nstep for filing of the appeal within the period of
\nlimitation and therefore, in such cases, question
\nof extension of period of limitation under Section
\n5 can not arise. Considering the fact that no
\napplication for certified copy of the decree was
\nfiled till 8.1.2001, the records disclose that the
\nPetitioners had not taken any step to file the
\nappeal within the period of limitation and hence,
\nquestion of extension of period of limitation does
\nnot arise. It was also sought to be contended that
\nquestion of exclusion of period in limitation does
\nnot arise. It was also sought to be contended that
\nquestion of exclusion of period in terms of
\nprovision of law contained in Section 12, also does
\nnot arise in the case in hand as the exclusion of
\nperiod can arise only in cases where the certified
\ncopy is asked for within the period of limitation
\nand not otherwise and that has been clarified in
\nthe explanation clause to Section 12 itself.
\nReliance is sought to be placed in the decision of
\nthe Apex Court in the matter of Udayan Chinubhai
\nv. R.C. Bali<\/a> reported in AIR 1977 SC 2319 and of
\nthe Division Bench of this Court in J.K. Kapur v.
\nVachha & Co. .\n<\/p>\n
8. Before considering the rival contentions in
\nthe matter, it is necessary to take note of certain
\nundisputed facts revealed from the records. On
\n31.7.1995 the trial court decreed the suit being
\nSCC No. 6545 of 1982 filed by the Respondents for
\ndeclaration and injunction restraining the
\nPetitioners from entering the disturbing the
\npossession of the respondent\/plaintiff in relation
\nto the suit stall which is a pan shop. On 14.9.1995
\nthe Petitioners applied for certified copy of the
\nJudgment and order of the trial court. On 5.10.1995
\nthe Petitioners filed appeal against the Judgment
\nof the trial court. On 6.10.1995 the matter was
\nmentioned before the Court thereupon it was
\ndirected to be placed for hearing on admission on
\n30.10.1995, while granting interim relief in the
\nnature of stay of the operative portion of the
\nimpugned decree. Matter thereafter was placed for
\nhearing on admission on 15.11.1995 on which date
\nthe appeal was admission on 15.11.1995 on which date
\nthe appeal was admitted. However, the same was
\nplaced before the court on 13.12.1996 on account of
\nfailure on the part of the Petitioners to remove the
\noffice objections and there upon four weeks time
\nwas granted to the petitioners to do the needful in
\nthe matter. Again the matter was placed before the
\nCourt on 24.2.1997 and six weeks time was granted
\nto the petitioners to file the certified copy of
\nthe decree. Matter again appeared before the
\nCourt on 12.12.2000 and it was noted that even
\nthough by order dated 24.2.1997 six weeks time was
\ngranted to the Petitioners to file certified copy
\nof the decree, the same was not filed till then and
\ntherefore, it was observed that if certified copy
\nof the decree was not to be filed within four weeks
\nfrom that day, the First Appeal would stand
\ndismissed without reference to the Court and if the
\nsame was to be filed within the specified time, the
\nFirst Appeal was ordered to be placed for
\nadmission. Civil Application No. 315 of 2001 was
\ntaken out by the Petitioners and it was placed
\nbefore the Court on 19.1.2001 whereupon time was
\ngranted till 23.1.2001 for removal of all the
\noffice objections. On account of failure to remove
\noffice objections, the same was again placed before
\nthe Court on 24.1.2001. On that day, the Court
\nordered that the time granted by the Court for
\nfiling certified copy vide order dated 12.12.2000
\nwas further extended for a period of three months.
\nThe Petitioners filed a certified copy of the decree
\nof the trial court on 23.3.2001. Matter was
\nthereafter placed before the Court on 22.6.2001.
\nHowever, none appeared on behalf of the Petitioners
\nor the Respondents and the Court passed the
\nfollowing order:-\n<\/p>\n
  “None present. In the event no steps will be
\ntaken to explain the delay and if the office
\nobjections will not be removed the matter
\nshould be put up before the court order on
\n18.7.2001.”\n<\/p>\n
As nothing was done by the Petitioners to comply
\nwith the said order, the matter was placed before
\nthe Court on 6.9.2001 and the learned Single Judge
\npassed the following order:-\n<\/p>\n
  “Inspite of grant of sufficient time and
\nadditional time by order dated 22.6.2001, no
\nsteps were taken by the Appellant to move an
\napplication for condonation of delay. Consequently,
\nthere is no alternative but to
\ndismiss the appeal being barred by
\nlimitation.”\n<\/p>\n
 It is also to be noted that during the pendency of
\nthe proceedings some other applications were also
\nfiled and they were disposed of after hearing the
\nparties. However, reference to them in detail is
\nnot necessary for the purpose of decision in the
\napplications under consideration.\n<\/p>\n
9. The materials on record therefore, undisputedly
\ndisclose that the certified copy of the decree
\nwas not filed alongwith the appeal against the
\nJudgment of the trial court. The provisions of law
\ncontained in Order 41 Rule 1 of CPC as well as the
\nrelevant provisions of the Appellate Side Rules of
\nthis High Court clearly warranted at the relevant
\ntime filing of the certified copy of the decree
\nalongwith the appeal. Undoubtedly, in case of any
\ndifficulty in procuring certified copy of the
\ndecree, the parties were permitted to move for
\nextension of period for filing such certified copy
\nof decree and undoubtedly it is a practise of the
\ncourt to grant such time in deserving cases.
\nIncase of failure to submit such certified copy,
\nthe office is required to raise objection in that
\nregard and to bring the said objection to the
\nnotice of the parties. Records apparently disclose
\nthat the office had raised necessary objection for
\nnot filing of the certified copy of the decree and
\nit was made known to the Petitioners and the
\npetitioner was granted time to place on record
\ncertified copy of the decree and infact the court
\nhad passed the order in that regard on 12.12.2002
\nclearly specifying that if the certified copy is
\nnot filed within four weeks from that day, the
\nappeal would stand dismissed without reference to
\nthat court and incase the same was to be filed, the
\nappeal was to be placed for admission immediately.
\nThis period was further extended by three months by
\norder dated 24.1.2001.\n<\/p>\n
10. Above undisputed facts undoubtedly disclose
\nthat time to place on record the certified copy of
\nthe decree was extended by the court till
\n24.4.2001. Simultaneously it also discloses that
\nthe Court had specifically directed the matter to
\nbe placed for admission immediately on filing of
\nthe certified copy of the decree on record. In
\nother words, though initially by order dated
\n15.11.1995 the appeal was stated to have been
\nadmitted, taking note of the fact that the appeal
\ncannot be admitted in the absence of certified copy
\nof the decree, the order dated 15.11.1995 directing
\nthe admission of the appeal was modified and it was
\nheld that the matter was required to be heard
\nafresh for admission in view of delay in placing on
\nrecord certified copy of the decree. This is clear
\nfrom the order dated 12.12.2000. It is nobody’s
\ncase that while passing the order dated 12.12.2000
\nthe earlier order dated 15.11.1995 was not brought
\nto the notice of this court or that the order dated
\n12.12.2000 was passed in ignorance of the order
\ndated 15.11.1995. Infact the order dated
\n12.12.2000 was passed in the appeal itself and
\nbeing fully aware of the order dated 15.11.1995 and
\nit was stated that the matter was to be placed for
\nhearing on admission after placing on record
\ncertified copy of the decree.\n<\/p>\n
11. From the above disclosed facts, it is apparent
\nthat even though the time for placing on record
\ncertified copy was extended by order dated
\n24.1.2001, the issued as to the entitlement of the
\nPetitioners to be heard in the appeal against the
\ndecree of the trial court was kept open and being
\nso and having filed certified copy beyond the
\nperiod of limitation, it was necessary for the
\nPetitioners to explain the delay in filing the
\ncertified copy of the decree as on account of delay
\nin filing certified copy which is an essential
\naccompaniment of the Memorandum of Appeal to construe
\nthat the appeal to have been filed within a
\nperiod of limitation, it was necessary of the
\nPetitioners to justify the delay in filing the
\nappeal which had resulted on account of delay on
\nplacing on record certified copy of the decree.\n<\/p>\n
12. At this stage, it is necessary to consider
\nthe contention sought to be raised on behalf of the
\nRespondents in relation to the provisions of
\nSection 5 and 12 of the Limitation Act 1963 and the
\ndecisions sought to be relied upon in that regard.\n<\/p>\n
13. The explanation clause to Section 12 provides
\nthat in computing the period of limitation, the
\ntime requisite for obtaining a certified copy of a
\ndecree of an order which is required to be excluded
\nin terms of the provisions of the said section, any
\ntime taken by the court to prepare the decree or
\norder before an application for a copy thereof is
\nmade shall not be excluded. According to the
\nlearned Advocate, question of exclusion of time
\nspent for preparation of the decree would arise
\nonly in cases where the party takes the necessary
\nsteps for preparation of the decree within the
\nperiod of limitation and not otherwise. In other
\nwords, if the period of limitation prescribed for
\nfiling of appeal is 30 days from the date of
\npronouncement of the Judgment, and the party files
\nan application for certified copy of the decree
\nwithin such 30 days, then the period spent in
\npreparation of such decree can be excluded while
\ncomputing period of limitation but if steps for
\nobtaining certified copy are taken after the expiry
\nof limitation, question of exclusion of period
\nspent for obtaining the certified copy of the decree
\ndoes not arise at all.\n<\/p>\n
14. The Apex Court in Udayan Chuimanbhai’s case
\nhas held that:-\n<\/p>\n
  “Computation of limitation is predominantly
\nthe governing factor in Section 12. In order to
\nachieve an easy computation of period of
\nlimitation without hardship to litigants and
\nto avoid vicissitudes of time consuming
\nlitigious exercises which the old section had
\nbeen subjected to the Explanation has been
\nintroduced. In order to enable correct
\ncomputation of the period of Limitation under
\nSection 12(2) with certitude when it is provided
\ntherein, that certain time has to be
\nexcluded, it is then clearly provided, at the
\nsame time, in the Explanation that a
\nparticular period of time shall not be
\nexcluded. The words “under this section in the
\nexplanation are consequent relating as was
\ndone to the governing to the section viz.
\ncomputation of period of limitation, one for
\ncomputation period of limitation 12(2) and
\nother for computation of time requiring in
\nobtaining copy of the decree under the
\nexplanation from computation of limitation.
\nThe explanation cannot be read in isolation.
\nThe position may be different if a decree in
\nlaw cannot be prepared because of non
\ncompliance with some directions in that
\nJudgment, the explanation does a composite
\nservice positive as well as negative.
\nPositively it prescribes the mode of correct
\ncomputation. By a process of exclusion and
\nnot explained the time before making an
\napplication for copy. The explanation does not
\nwarrant exclusion of certain period positively
\nexcluded by him for the purpose of computing
\nthe period of limitation by “excluding”
\nincluded period for the benefit of a person
\nprior to making application, must be
\nrespected.”\n<\/p>\n
15. The division Bench of this court in Jaddish
\nKrishn Kapoor’s case has held thus:-\n<\/p>\n
  “The entire time taken by the party in making
\nan application for copies from the date of the
\npronouncement of the Judgment is not to be ex-cluded
\neven if that is an over lapping period
\nwhich is also taken by the court in drawing up
\nthe decree. We have therefore nodoubt that the
\nlegal position from the 1st of January 1964
\nclearly is that a party must apply for a copy
\nof the Judgment and decree within the period
\nof limitation prescribed for the appeal and if
\nhe does not do so but waits beyond the
\nprescribed period of the limitation on the
\nspecious excuse that the court is still
\ndrawing up the decree, his application being
\nbeyond limitation, the appeal that will be
\nfiled subsequently can never be in time.”\n<\/p>\n
16. Considering the law laid down by the Apex
\nCourt and the Division Bench of this Court, it is
\ntherefore, clear that question of giving benefit of
\nexclusion of a period required for obtaining
\ncertified copy of the Judgment and decree while
\nfiling the appeal can arise only in cases where the
\nparty applies for certified copy of the Judgment
\nand decree within the period of limitation and not
\notherwise. A party sleeping over his right for the
\nentire period of limitation and thereafter asking
\nfor the certified copy of the Judgment and decree
\ncannot claim benefit of exclusion of the said
\nperiod while computing period of limitation which
\nhe would have otherwise been entitled to under
\nSection 12, had he filed application for certified
\ncopy within the period of limitation. Learned
\nAdvocate for the Respondents is therefore justified
\nin contending that in case where application for
\ncertified copy of the Judgment and decree is filed
\nbeyond the period of limitation prescribed for
\nfiling of the appeal the party cannot avail the
\nbenefit of exclusion of period under Section 12 of
\nthe Limitation Act.\n<\/p>\n
17. As regards the provisions contained in Section
\n5 of the Limitation Act, the said section speaks of
\nextension of prescribed period in certain cases.
\nIt provides that any appeal may be admitted after
\nthe prescribed period if the appellant satisfies
\nthe court that he had sufficient cause for not
\npreferring the appeal within such period. The
\nexplanation clause thereto provides that the fact
\nthat the appellant was misled by any order,
\npractice or Judgment of the High Court in
\nascertaining or computing the prescribed period may
\nbe sufficient cause within the meaning of the said
\nsection. It is the contention of the learned
\nAdvocate for the Respondent that question of
\ninvoking the powers under Section 5 cannot arise
\nunless the party filing the appeal discloses steps
\non the part of such party having been taken for the
\npurpose of filing the appeal within the period of
\nlimitation and such fact would include filing of
\nan application for obtaining certified copy of the
\nJudgment and decree, and therefore, incase the
\nparty fails to disclose any such acts on his or her
\npart, then such a party is not entitled to claim
\nany benefit under Section 5 of the Limitation Act.\n<\/p>\n
18. I am afraid the arguments in this regard if
\naccepted would virtually defeat the very purpose of
\nthe provisions contained in Section 5. The Courts
\nare fully empowered to extend the period of
\nlimitation in a case where the appellant discloses
\nsufficient cause for not preferring the appeal
\nwithin the prescribed period. In other words,
\nsufficient cause for inaction on the part of the
\nappellant within the prescribed period in relation
\nto the filing of the appeal would justify admission
\nof the appeal by invoking powers under Section 5 of
\nthe Limitation Act. The inaction on the part of
\nthe appellant within the prescribed period in
\nrelation to the “preferring the appeal” would
\ncertainly include an act necessary for the purpose
\nof “preferring the appeal” within the meaning of
\nthe said expression under Section 5 of the Act.
\nThe law is very clear as regards the procedure to
\nbe followed for the purpose of filing of the
\nappeal. The appeal cannot be filed without the
\ncertified copy of the Judgment and decree.
\nUndoubtedly, in view of the amendment to the provisions
\nof Order 41 Rule 1 w.e.f. 1.7.2002 the requirement
\nof accompaniment of the certified copy of
\nthe decree at the time of presentation of
\nMemorandum of Appeal though excluded, the necessity
\nof the certified copy of the decree for disposing
\nthe appeal cannot be ruled out as various other
\nfactors like valuation of the Appeal, the court
\nfee payable thereon would depend upon the bill of
\ncost prepared by the Registry on disposal of the
\nsuit on the basis of the valuation and the court
\nfee paid in the suit. Being so the necessity of
\nthe certified copy of the Judgment as well as of
\nthe decree for entertaining and disposal of the
\nappeal cannot be considered as mere formality but
\nhas to be considered as mandatory requirement.
\nBeing so any step in the direction of collecting
\nthe legally required material necessary for the
\npurpose of preferring the appeal would amount to
\ntaking steps for preferring the appeal within the
\nmeaning of the said expression under Section 5 of
\nthe said Act. Being so, “sufficient cause for not
\npreferring” would also include sufficient cause for
\nnot preferring the application for certified copy
\nof the decree within the period of limitation.\n<\/p>\n
19. Even otherwise, thee can be cases where a
\nparty may be totally unaware of the pronouncement
\nof Judgment for a period more than one prescribed
\nfor preferring the appeal and on having learnt of
\nsuch Judgment after the expiry of such period
\ndesires to file the appeal, is such person to be
\nconsidered to be totally debarred from preferring
\nthe appeal? Any such interpretation would
\nvirtually defeat the very purpose of Section 5 of
\nthe Limitation Act. It is well settled that
\ncondonation of delay is not the same thing like
\nexclusion of time under Section 12 or 14 of the
\nAct. It is rather extension of time which is a
\nmatter of concession or indulgence to the applicant
\nwhich can not be claimed as a matter of absolute
\nright; however, Section 5 has to receive a legal
\nconstruction so as to advance substantial justice
\nwhen no negligence or want of bonafide is
\nimputable to the applicant. Therefore, contentions
\nsought to be raised on behalf of the respondent in
\nthis regard are to be rejected.\n<\/p>\n
20. Reverting to the facts of the case, it is not
\nin dispute that no application for certified copy
\nof decree was filed till 1.1.2001. The suit was
\ndecreed on 31.7.1995. The application for restoration,
\nas pointed out earlier, discloses any two
\ngrounds in support of the claim for condonation of
\ndelay viz. firstly that the time to produce the
\ncertified copy was extended from time to time and
\nlast occasion was on 24.1.2001 and secondly, that
\nthe appeal having been admitted it could not have
\nbeen dismissed. Apparently, there is no
\njustification for non filing of the application for
\nobtaining the certified copy of the decree till
\n7.1.2001. It is pertinent to note that apart from
\nthe objection being raised by the office in
\nrelation to non production of the certified copy of
\nthe decree on record, the specific orders were
\npassed regarding non compliance of the said
\nrequirement of and the order dated 24.2.1997 clearly
\nspeaks of statement by the Counsel of the
\nPetitioners that the certified copy would be
\nplaced on record within six weeks therefrom.
\nEvidently, it was within the knowledge of the
\npetitioners that the certified copy of the decree
\nwas required to be placed on record, apart from the
\nfact that for the purpose of the maintainability
\nof the appeal, such certified copy was required to
\nbe placed on record. Inspite of the knowledge to
\nthe petitioner about the certified copy being
\nrequired to be placed on record, there is
\nabsolutely no explanation as to what prevented the
\npetitioners from obtaining certified copy from
\nFebruary-1997 till January-2001. The arguments
\nadvanced in the course of the hearing of the matter
\nblaming the earlier Advocate on record for failure
\nto ask for certified copy of the decree in
\napplication dated 14.9.1995 without disclosing
\nany cause for failure on the part of the
\npetitioners to obtain certified copy from February-1997
\nonwards inspite of the full knowledge about
\nthe requirements thereof and attempt to blame the
\nearlier Advocate of the petitioners in that regard
\nclearly reveal lack of bonafide on the part of the
\npetitioners.\n<\/p>\n
21. Contention that the petitioners were granted
\ntime to produce the certified copy of the decree
\nwould itself disclose sufficient cause for
\ncondonation of delay is devoid of substance. As
\nalready observed above, by order dated 12.12.2000
\nit was made specifically clear that on account of
\nfailure on the part of the petitioners to file
\ncertified copy of the decree alongwith the appeal
\nand the same was sought to be placed on record long
\nafter the expiry of the period of limitation, the
\npetitioners had to justify the delay for the
\npurpose of admission of the appeal. The
\npetitioners did not bother to file any application
\nfor condonation of delay. The hesitation on the
\npart of the petitioners to seek condonation of
\ndelay cannot be said to be unintentional as records
\nreveal that inspite of necessary warning given to
\nthe petitioners by order dated 22.6.2001 that on
\naccount of failure to take appropriate steps to
\nexplain the delay and unless office objection in
\nthat regard is removed, the matter would be placed
\nfor consequential order on 18.7.2001, the petitioners
\nknowing well the consequences of their failure
\nto take appropriate steps did not bother to move
\nany application for condonation of delay and consequently
\nappeal was dismissed on 6.9.2001. Even
\nthereafter attempt was made to challenge that order
\nwithout explaining the delay by filing Letters
\nPatent Appeal and only when the Letters Patent
\nAppeal came up for hearing it was withdrawn on the
\nbasis that the petitioners would file necessary
\napplication for condonation of delay.\n<\/p>\n
22. Even after submitting before the Division
\nBench that the Petitioners would file necessary
\napplication for condonation of delay, the petitioners
\ndid not bother to give any explanation for
\ncondonation of delay in their application for
\nrestoration, as is evident from the contents of
\nthe said application for restoration. Rather they
\nhave choosen to contend the order of dismissal of
\nthe appeal to be illegal and the condonation of
\ndelay in filing the certified copy of the decree to
\nbe a matter of right and as a matter of course on
\nthe basis of time that was granted to place on
\nrecord the said certified copy. The matter does
\nnot end there. The petitioners even do not
\nhesitate to make incorrect statement in the said
\napplication for restoration in relation to the
\napplication which was filed by the Advocate on
\n14.9.1995. Knowing well that the application which
\nwas filed on 14.9.1995 was only in relation to the
\ncertified copy of the Judgment and order, a solemn
\nstatement is made in para No. 1 of the application
\nfor restoration that:-\n<\/p>\n
  “Application for certified copy of the decree
\nwas made on 14.9.1995 in the City Civil Court.
\nThe certified copy of the decree was not
\nobtained as the proceedings were not traceable
\nor mis-placed in the Court.”\n<\/p>\n
The statement has been verified as true to his own
\nknowledge and belief by the petitioner No. 1 Raj
\nNarayan Singh. Nodoubt, when the matter was being
\nheard an attention was drawn to the said statement,
\nthe learned Advocate for the petitioners on behalf
\nof the petitioners submitted that the petitioners
\nwere seeking to tender their apology for the said
\nincorrect statement. Infact it is too late to
\nentertain any such apology on behalf of the
\npetitioners as regards the said incorrect
\nstatement, as the submission in that regard has
\nbeen made only after drawing attention of the
\npetitioners to the said fact. The said statement is
\nfrom the application filed by the petitioners
\nthemselves. The application was filed knowing
\nwell that it was pertaining to the condonation of
\ndelay in placing the certified copy of the decree
\non record. The statement is in relation to the
\ncertified copy of the decree. Being so, the
\nstatement is very relevant statement in relation to
\nthe matter in question and therefore, it cannot be
\npresumed that the petitioners did not know the
\nconsequences of making such incorrect statement.
\nBe as it may, the same discloses the conduct and
\nthe attitude of the petitioners and both these
\nfactors are very relevant while dealing with the
\napplication seeking a discretionary relief from
\nthis court and more particularly when there is a
\ndelay of merely four years in seeking certified
\ncopy of the decree.\n<\/p>\n
23. The extension of time to enable the petitioners
\nto place on record certified copy of the decree,
\nas already observed above by itself does not
\namount to condonation of the delay in filing the
\nappeal. It is not mere lodging of the appeal that
\nis sufficient but the lodging has to be in
\naccordance with the provisions of law and by
\nfollowing the procedure prescribed by the law and
\nnot otherwise. The procedure clearly required
\nMemorandum of appeal to the accompanied by
\ncertified copy of he decree and in the case in
\nhand Memorandum of Appeal was not accompanied by
\nsuch decree till 23.3.2001. Leave to allow the
\nMemorandum of Appeal to be accompanied by the
\ncertified copy of the decree by itself cannot
\namount to condonation of delay which has to be
\ndecided by considering material on record to ascertain
\nwhether there has been sufficient cause for
\ncondonation of delay by applying the provisions of
\nlaw in Section 5 of the Limitation Act. An order
\ncondoning the delay has to be judicious order and
\nshould disclose the application of mind of the
\nJudge and the facts disclosed should constitute
\nsufficient cause for the purpose of condonation of
\ndelay and more particularly when it is a contested
\nmatter. Hence, merely because the party who is
\nallowed to place on record certified copy of the
\ndecree and for that purpose time is granted that
\nitself would not tentamount to condonation of delay
\nin filing the appeal.\n<\/p>\n
24. The contention that appeal was admitted and
\ntherefore there was no occasion for condonation of
\ndelay is also devoid of substance. As already
\npointed out above, nothing prevents the court from
\nmodifying its earlier order for justifiable reason
\nand when the party tries to obtain any relief
\nwithout complying with the mandatory provision in
\nrelation to the procedure which is required to be
\nfollowed, the courts are fully empowered to pass an
\nappropriate order in exercise of inharent powers.
\nIn the case in hand as already pointed out above
\nthe order dated 12.12.2000 clearly discloses that
\nappeal was required to be heard for admission after
\nplacing certified copy of the decree on record.
\nBeing so, merely because the registry had placed
\nthe appeal for the purpose of final hearing that
\nitself would not mean that judicial order passed by
\nthe court would stand nullified. Mere listing of
\nthe case alongwith matters fixed for final hearing
\nthat itself would not decide the status of the
\ncase. When the records apparently disclose that
\nthe matter is still required to be heard on
\nadmission, listing of such matters alongwith other
\nfinal hearing and even taken up for the purpose of
\nfinal hearing pursuant to listing of such matter on
\nthe board containing the matters for the final
\nhearing that by itself would not disclose the stage
\nat which the matter stands. Being so, it cannot be
\nsaid that the matter was admitted and could not
\nhave been disposed of without being heard finally.
\nThat apart, considering that the appeal being
\ncontinuation of the suit and bearing in mind
\nprovisions of Order 41 Rule 17 read with the
\nprovisions of Section 151 and Order 17 of the Code
\nof Civil Procedure, the default by a party would
\nnot restrict to non appearance of the party but
\nwould also include a default in carrying out any
\nact necessary for the purpose of further progress
\nof the proceedings in the appeal and failure on the
\npart of the party to the appeal to perform such an
\nact would, empower the court to dismiss the appeal
\nfor default. Once the order dated 22.6.2001
\nclearly required the petitioners to explain the
\ndelay and to remove the objection and further being
\nrequired to face the consequences of failure to
\nexplain the delay and to remove the office
\nobjection within the specified period and the
\npetitioners having failed in that regard, nothing
\nprevented the court from dismissing the appeal for
\ndefault on 6.9.2001. Mere absence of the word
\n“default” in the order dated 6.9.2001 would not
\nmake any difference.\n<\/p>\n
25. Curiously, inspite of the through knowledge
\nof requirement and necessity of an application
\ndisclosing sufficient cause for condonation of
\ndelay, no such application was filed alongwith the
\napplication for restoration and such application
\nwas filed merely seven months after filing of the
\napplication for restoration, and that too without
\ndisclosing any fact justifying the delay and merely
\nreiterating the contents of the application for
\nrestoration. Undoubtedly, one additional sentence
\ndoes appear in the said application to the effect
\nthat “however inadvertently the same remained to
\nbe filed as it is not came to the notice of the
\npetitioners”. Again it is pertinent to note that
\none of the petitioners being the petitioner No. 3 is
\nholder of LL.B. degree. There is no satisfactory
\nexplanation for delay in filing the applications.\n<\/p>\n
26. In the facts and circumstances of the case
\ntherefore, the petitioners having failed to disclose
\nany sufficient cause for condonation of
\ndelay, the applications deserve to the dismissed and
\nare accordingly hereby dismissed with no order as
\nto costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Rajnarainsingh Avadhraj Singh, … vs Smt. Vidyadevi Widow Of Ramraj … on 12 December, 2002 Author: R Khandeparkar Bench: R Khandeparkar 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-69873","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRajnarainsingh Avadhraj Singh, ... vs Smt. 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