Judgment
second appeal507.17 24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.507 OF 2017
Kamalkishore s/o Ramnath Sharma,
Proprietor of Digitronics Equipment
& Consultant Engineers,
Aged about 57 years, Occupation : Business,
R/o 176, New Colony, Nagpur (M.S.). ..... Appellant.
:: VERSUS ::
Shri Sudhanshu s/o Manoranjan Biswas,
Proprietor of M/s. Central Switchgear,
Aged about 60 years,
Occupation : Business, R/o Plot No.156/2,
MIDC, Hingna, Nagpur (M.S.). ..... Respondent.
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Shri A.Shelat, Counsel for the appellant.
Shri S.M. Prasad, Counsel for the respondent.
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CORAM : V.M. DESHPANDE, J.
DATE : NOVEMBER 1, 2017. ORAL JUDGMENT
1. Heard learned counsel Shri A. Shelat for the appellant and learned counsel Shri S.M. Prasad for the respondent, in extenso.
2. On 6.9.2017, notice of final disposal of the appeal was .....2/-
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"Whether the First Appellate Court was legally justified in refusing to condone delay in filing the appeal under Section 96 of the Code of Civil Procedure, 1908?"
3. By consent of learned counsel for the parties and as per order dated 6.9.2017, the appeal is taken up for its final hearing for considering the above substantial question of law.
4. The facts giving rise to present appeal in a nut shell are as under:
The respondent is the original plaintiff. He filed a suit for recovery of amount of Rs.4,89,005/-. In the said suit, on being summoned, the present appellant appeared and filed his written statement and contested the claim of the plaintiff. After filing of the written statement, it appears that the appellant/defendant chose not to remain present before the Trial Court. Consequently, on 29.2.2016 learned Joint Civil Judge Junior Division, Hingna, District Nagpur .....3/-
::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:11:27 ::: Judgment second appeal507.17 24 3 granted the decree in favour of the respondent/plaintiff along with interest @ 18% per annum.
5. The respondent/plaintiff put the said decree for execution by filing Regular Darkhast No.11 of 2016 before the executing Court. The notice of the said execution proceedings was served upon the appellant/defendant. In pursuance to the said, he appeared in the executing Court on 5.11.2016. Thereafter, he filed an appeal under Section 96 of the Code of Civil Procedure, thereby challenged the judgment and decree passed by learned Trial Judge in favour of the respondent/plaintiff. Since the appeal was barred by limitation, an application for condonation of delay was filed.
6. An application for condonation of delay for filing the appeal was registered as Misc. Civil Application No.73 of 2017. The said application was contested by the respondent/plaintiff decree holder and learned District Judge-8, Nagpur on 4.7.2017 rejected the application. Consequently, the registration of the first appeal filed on behalf of the appellant was refused. That gives rise to the present .....4/-
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7. After hearing learned counsel for the appellant and learned counsel for the respondent, it is clear that after filing of the written statement, the appellant did not attend the Trial Court. The reasons are put forth by the appellant in the application for condonation of delay that he could not appear before the Trial Court because of the wrong advice given to him by his previous Advocate. I am afraid that such excuses can be put forth by the litigants. It is very easy for a litigant to make allegations against his previous Advocate in the subsequent proceeding in order to garner sympathy from the Appellate Court. Such a practice adopted by litigant needs to be deprecated. However, it is clear that the case of the appellant was not tested on its own merits because of his failure to remain present in the Court below.
8. Every litigant has a right to get his case or cause decided on its own merits. Normally, the Court should not adopt a technical view to non-suit the suiter on the technical grounds.
.....5/-
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9. It is not the case of the respondent/plaintiff that the reasons given by the applicant at least to the extent that there was a financial constraint on the part of the appellant or the family members were not keeping good health are mala fide. Thus, it is clear that to that extent the application filed for condonation of delay ought to have been considered sympathetically by learned Lower Appellate Court.
10. Therefore, I am of the view that the substantial question of law has to be answered in negative and the order of the Appellate Court rejecting the application for condonation of delay has to be set aside. However, the respondent who is the decree holder cannot be left in lurch. Therefore, the present appeal is allowed on the following conditions:
ORDER
i) The appellant to deposit Rs.4,89,005/- before the Lower Appellate Court on or before 15.12.2017 positively.
ii) On such deposit of the aforesaid decreetal amount, the .....6/-::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:11:27 :::
Judgment second appeal507.17 24 6 application for condonation of delay is allowed by setting aside the order rejecting the same and the Lower Appellate Court should register the appeal filed on behalf of the appellant challenging judgment and decree passed by learned Joint Civil Judge Junior Division, Hingna, District Nagpur in RCS No.112 of 2012 (Old Special Civil Suit No.584 of 2005) dated 29.2.2016.
iii) If the aforesaid amount is not deposited on or before 15.12.2017, as directed above before the Appellate Court, the Appellate Court should not register the appeal. Not only that, order dated 4.7.2017 passed by learned District Judge-8, Nagpur below Exhibit-1 in Misc. Civil Application No.73 of 2017 shall stand revived.
iv) If the amount is deposited before the Appellate Court, the Appellate Court is directed to invest the said amount with any Nationalized Bank initially for a period of one year and shall continue to re-invest the same, if occasion .....7/-
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v) The parties are directed to appear on or before the Appellate Court on 18.12.2017. The appellate Court shall decide the appeal on its own merits in accordance with law.
vi) After decision of the appeal on its own merits, the succeeding party shall be entitled to withdraw the said decreetal amount along with interest accrued thereon.
vii) With these conditions, the appeal is allowed. However, there shall be no order as to costs.
JUDGE !! BRW !! ...../-
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