Bombay High Court
Kuddus Khan Gaffarkhan And Anr. vs Mohammad Yakub Pir Mohammad And ... on 9 October, 2001
Equivalent citations: 2002 (2) BomCR 82
Author: S Gundewar
Bench: S Gundewar
JUDGMENT
S.D. Gundewar, J.
1. Heard finally at the stages of admission by the consent of the parties.
2. The present Civil Revision Application is directed against the order dated 14-6-2001, passed by the learned 3rd Additional District Judge, Amravati in M.C.A. No. 126/2000, whereby the learned Additional District Judge dismissed the applicant's application for condonation of delay.
3. It is contended by the applicants that Regular Civil Suit No. 482/1997, filed by the non-applicant No. 1 against them for eviction in respect of suit house shown by letters 'ABCD' in the plaint map came to be decreed on 26-11-1998. However, they learnt about the said judgment and decree only after service of warrant of attachment issued against them in Regular Darkhast No. 114/1999 i.e. on 24-6-1999. According to the applicants, they are poor and illiterate persons and were not aware about the niceties of law, and therefore, there was a delay of about one year and 9 months in filing the first appeal against the aforesaid judgment and decree.
4. The non-applicants resisted the aforesaid application filed by the applicants, contending that the applicants were aware of the judgment and decree dated 26-11-1998 passed by the learned 8th Joint Civil Judge, Junior Division, Amravati since the non applicant No. 1 had informed them about the same by issuing notice. It is further contended by them that thereafter notice under Order XXI, Rule 22 of the Civil Procedure Code was issued to the applicants and in response to the said notice, they appeared in the execution proceedings and engaged a Counsel, who sought adjournments from time to time and therefore, now it does not lie in the mouth of the applicants to say that they learnt about the judgment and decree passed by the trial Judge only after the service of warrant of attachment i.e. on 24-6-1999. It is further contended by the non-applicants that there is inordinate delay of about 1 year and 9 months in filing the first appeal, which has not been properly explained by the applicants and, therefore, the application for condonation of delay filed by the applicants deserves to be dismissed.
5. Considering the contentions raised on behalf of both the sides and after assessing the entire material on record, the learned Additional District Judge dismissed the applicants' application for condonation of delay vide order dated 14-6-2001, which is impugned in this civil revision application.
6. Heard Shri Anil Mardikar, learned Counsel for the applicants and Shri Ziauddin, learned Counsel for the non-applicant No. 1, none for the non applicant No. 2 though duly served.
7. It is, no doubt, true that the expression 'sufficient cause' should receive a liberal construction so as to advance substantial justice. However, a Court granting the indulgence must be satisfied that there was diligence on the part of the applicant and that he was not guilty of any negligence whatsoever. The question of existence of sufficient cause is one to be decided on the facts and circumstances of the particular case. All that is needed is that the concerned parties should show justifiable and sufficient grounds to excuse the delay. It is relevant to bear in mind two important considerations, namely : (1) the expiration of the limitation for filing the appeal gives rise to a legal right in favour of the decree holder to treat the decree as binding between the parties and this legal right should not be light-heartedly disturbed; (2) if sufficient cause of excusing delay is shown, the applicant is not entitled as a matter of right to condonation of delay, but discretion is given to the Court to condone the delay and admit the appeal. If the applicant is not diligent and deliberate inaction or want of bona fides is imputable to the applicant, the delay cannot be condoned. Bearing in mind the aforesaid considerations, it is to be seen as to whether in the case-in-hand, the applicant has shown the sufficient cause for the condonation of delay of 1 year and 9 months.
8. In the case in hand, it has been specifically observed by the learned Additional District Judge in the impugned order that the documents produced on record show that soon after the judgment and decree dated 26-11-1998 passed by the learned 8th Joint Civil Judge, Junior Division, Amravati, the non applicant No. 1, by issuing a notice, asked the applicants to comply with the directions given by the trial Court. Not only that but a notice under Order XXI, Rule 22 of the Civil Procedure Code was also issued in Regular Darkhast No. 114/1999 which was served upon the applicants on 24-6-1999 and in response to the said notice, the applicants appeared in the aforesaid execution proceedings and engaged a Counsel, who sought adjournments from time to time. It is further observed by the learned Additional District Judge that this shows that the applicants learnt about the judgment and decree in question firstly on 27-2-1999 and subsequently on 24-6-1999 when the notice under Order XXI, Rule 22 of the Civil Procedure Code was served upon them. This clearly indicates that in spite of the knowledge of the judgment and decree passed by the trial Court, the applicants filed the first appeal on 14-8-2000 i.e. after about 1 year and 9 months of the passing of judgment and decree by the trial Court. This inordinate delay has not been properly explained by the applicants. The contention raised by the applicants in this regard that they are poor and illiterate persons and were not aware of the niceties of the law cannot be said to be a sufficient cause for the condonation of delay. The learned Additional District Judge, after considering all the aspects of the matter, has dismissed the applicant's application for condonation of delay and in my opinion, the impugned order passed by the learned Additional District Judge being just and proper, calls for no interference at the hands of this Court.
9. In the result, the Civil Revision Application being devoid of substance, is dismissed. No order as to costs.
Certified copy expedited.
10. At this juncture, the learned Counsel for the applicants prays for staying the effect and operation of this order for a period of two weeks. In the facts and circumstances of the case and to enable the applicants to carry the matter in appeal, the aforesaid request made by the learned Counsel for the applicants is allowed. The effect and operation of this order is stayed for a period of two weeks from today.
