Bombay High Court
Shahurao vs Vishwanath on 22 October, 2013
Bench: Mridula Bhatkar
W.P.No.2729/2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.2729 OF 2012
1. Shahurao s/o Sitaram Bhalerao
Age 40 years, Occu.Labour,
R/o Agar Nandur, Taluka Georai,
District Beed
2. Ramprasad s/o Tulshiram Atkare
Since deceased through L.Rs.
A. Neelabai w/o Ramprasad Atkare,
Age 50 years, Occu. Household,
R/o Agar Nandur, Taluka Georai,
B.
District Beed
Sanjay s/o Ramprasad Atkare,
Age 32 years, Occu.Agriculture,
R/o Agar Nandur, Taluka Georai,
District Beed
3. Asaram s/o Laxman Banare,
Age 69 years, Occu.Agriculture
R/o As above
4. Dhanu s/o Gangaram Sukale,
Age 66 years, Occu.Agriculture,
R/o As above
6. Aba s/o Ananda Bhalerao,
Age 45 years, Occu.Agriculture
R/o As above
7. Laxman s/o Kaluji Walekar,
Age 45 years, Occu. Agriculture,
R/o As above ..Petitioners
Versus
1. Vishwanath s/o Rama Jadhav,
since deceased through L.Rs.
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W.P.No.2729/2012
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(1-A) Murlidhar Vishwanath Jadhav, .. Petition dismissed
Age 47 years, Occu.Agriculture, as against Respondents
R/o Besides Peth, Beed Police 1-A, 5-D, 6, 10 and 15
Station, Taluka and Dist.Beed as per Court's order
dated 22.4.2013
1-B. Namdeo Vishwanath Jadhav,
Age 46 years, Occu.Agriculture,
Since deceased through L.Rs.
As shown at Sr.No.5-A to 5-D
1-C. Kausalyabai Bhagwan Gaikwad,
Age 45 years, Occu.Household
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
1-D
Mahananda w/o Vishnu Gaikwad
Age 42 years, Occu.Household
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
1-E. Ajay s/o Shridhar Jadhav,
Age 17 years, Minor,
Under Guardianship of Housabai
Shridhar Jadhav, Age 47 years,
Occu. Household,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
2. Raosaheb s/o Rambhau Gaikwad
Age 38 years, Occu.Agriculture
R/o Agar Nandur, Taluka Georai,
District Beed
3. Murlidhar s/o Asaram Gaikwad,
Age 53 years, Occu.Agriculture
R/o Agar Nandur, Taluka Georai,
District Beed
4. Kausalyabai w/o Bhagwan Gaikwad,
Age 44 years, Occu.Household,
R/o Agar Nandur, Taluka Georai,
District Beed
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W.P.No.2729/2012
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5. Namdeo s/o Vishwanath Jadhav,
Age 40 years, Occu.Service,
Since deceased through L.Rs.
5-A. Laxmibai w/o Namdeo Jadhav,
Age 46 years, Occu. Household,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
5-B. Keshav s/o Namdeo Jadhav,
Age 28 years, Occu. Service,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
5-C. Ram s/o Namdeo Jadhav,
Age 26 years, Occu.Service,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
(5-D) Sandipan s/o Namdeo Jadhav,
Age 24 years, Occu.Service,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
(6) Santram s/o Pandurang Gaikwad .. Petition dismissed
Age 58 years, Occu.Agriculture as against
R/o Besides Peth Beed Police Respondent No.6
Station, Taluka and Dist.Beed as per Court's
order dt.22.4.2013
7. Tukaram s/o Kishan Jadhav,
Age 48 years, Occu.Agriculture
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
8. Ashruba s/o Baburao Jadhav,
Age 53 years, Occu.Agriculture
Since deceased through L.Rs.
8-A. Droupadabai w/o Ashruba Jadhav,
Age 46 years, Occu.Household,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
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W.P.No.2729/2012
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8-B. Ram s/o Ashruba Jadhav,
Age 31 years, Occu.Service,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
8-C. Laxman s/o Ashruba Jadhav,
Age 29 years, Occu.Service
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
8-D. Ganesh s/o Ashruba Jadhav,
Age 27 years, Occu. Agriculture
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
8-E. Vitthal s/o Ashruba Jadhav,
Age 24 years, Occu.Service,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
9. Laxman s/o Rama Gaikwad,
Age 53 years, Occu.Agriculture
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
(10). Suresh s/o Bhimrao Gaikwad, .. Petition dismissed
Age 43 years, Occu.Agriculture as against
R/o Besides Peth Beed Police Respondent no.10
Station, Taluka and Dist.Beed as per Court's
order dt.22.4.2013
11. Bhagwan s/o Kashinath Gaikwad,
Age 48 years, Occu.Agriculture
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
12. Kalyan s/o Laxman Gaikwad
Age 53 years, Occu.Agriculture
R/o Agar Nandur, Taluka Georai,
District Beed.
13. Shridhar s/o Vishwanath Jadhav
Age 43 years, Occu.Agriculture
Since deceased through L.Rs.
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W.P.No.2729/2012
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13-A. Hausabai w/o Shridhar Jadhav,
Age 51 years, Occu.Household
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
13-B. Nishant s/o Shridhar Jadhav,
Age 26 years, Occu.Service,
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
13-C. Shashikant s/o Shridhar Jadhav,
Age 24 years, Occu.Service
R/o Besides Peth Beed Police
Station, Taluka and Dist.Beed
14.
Ratnakar s/o Ambadas Gaikwad,
Age 43 years, Occu.Agriculture
R/o Agar Nandur, Taluka Georai,
District Beed
(15) Sumanbai w/o Murlidhar Jadhav, .. Petition dismissed
Age 48 years, Occu.Agriculture as against
R/o Agar Nandur, Taluka Georai, Respondent No.15
District Beed as per Court's
order dt.22.4.2013
16. Radhabai w/o Ramprasad Atkare,
Age 19 years, Occu. Household
R/o Agar Nandur, Taluka Georai,
District Beed
17. Digambar s/o Sakharam Bhalerao,
Age 58 years, Occu.Agriculture
R/o Agar Nandur, Taluka Georai,
District Beed ..Respondents
(Respondents 1 to 13
Orig.Plaintiffs)
Mr C.V.Dharurkar, Advocate for petitioners
Mr G.K.Naik-Thigle, Advocate for respondents 7 and 8-A to 8-E
Petition dismissed as against respondents No.1-A, 5-D, 6, 10 and
15 as per Court's order dated 22.4.2013
Respondent No.1-B dead
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W.P.No.2729/2012
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Respondents No.1-C to 1-E, 2 to 4, 5-A to 5-C, 9, 11 to 15 and 17
served
CORAM : MRS.MRIDULA BHATKAR, J.
DATE : 22nd October 2013
PER COURT
1. This writ petition is directed against the order dated
17.1.2012 passed by District Judge-II, Beed in Miscellaneous Civil
Application No.192/2006 in R.C.A.No.100/2002.
2.
Respondents filed R.C.S.No.32/1993, against the petitioners
for possession of the suit land. The said suit was decreed by
judgment and order dated 26.7.2002 by Civil Judge, Junior
Division, Gevrai. The said judgment and order dated 26.7.2002
was challenged by the present petitioners by filing R.C.A.No.
100/2002. Said Regular Civil Appeal was dismissed for default on
1.9.2005 by V Ad hoc Additional District Judge, Beed. The
petitioners thereafter filed application for restoration and re-
admission of the said appeal. However, there was delay of 10
months and 5 days for filing the application for restoration of the
appeal and, therefore, a separate application for condonation of
delay was filed. Both the applications were heard and the District
Judge-2, Beed, by order dated 17.1.2012 dismissed the said
application for condonation of delay. Hence, this petition.
W.P.No.2729/2012
3. Learned Counsel for the respondents, at the outset, raised
objection to the maintainability of this petition. Learned Counsel
for both the sides advanced their arguments on this point and by
consent, requested the Court to decide this issue first.
4. Learned Counsel for the respondents submitted that by
impugned order, the application for condonation of delay for filing
application for setting aside the order of dismissal of the appeal is
itself.
dismissed, which, in fact, amounts to the dismissal of the appeal
He submitted that the petitioners, therefore, should not
have filed the petition challenging the said orders, but considering
the final result of the dismissal of these applications, it was
necessary for the petitioners to file appeal against the said order
under Order XLIII, Rule 1 (t) of the Code of Civil Procedure and
second appeal under Order XLII of the C.P.C. Learned Counsel
fortified this submission on the basis of ratio laid down by the
Honourable Supreme Court in Shyam Sundar Sarma Vs.
Pannalal Jaiswal and ors., reported in (2005) 1 Supreme
Court Cases 436, in which Honourable Supreme Court held that
refusal to condone the delay amounts to dismmisal of appeal. He
relied on the order passed by the learned Single Judge of
this Court dated 8.12.2010 in Second Appeal No.502 of
2009 (Namdeo s/o Kishan Sakhare Vs. Sow.Dwarkabai w/o
W.P.No.2729/2012
Jija Sakhare & Ors.), wherein the appeal was dismissed on
refusal to allow the application for condonation of delay and so,
the second appeal was preferred and the Court, while admitting
the second appeal, formulated a substantial question of law in
respect of proof of sufficient cause in the application for
condonation of delay. Learned Counsel further relied on the
judgment of this High Court in Chandu s/o Jagannath Ambekar
and anr. Vs. Digambar s/o Kisanrao Kulkarni and ors.,
reported in 2004 BCI (0) 69.
5. In reply, learned Counsel for the petitioners submitted that
application for restoration of appeal was dismissed due to the
dismissal of the application for condonation of delay. Hence, no
appeal can lie on such order, but the only remedy available is to
avail of the writ jurisdiction of this Court. He submitted that the
facts of his case are different from the facts in the case of Shyam
Sundar (supra) and, therefore, the matter is different than the
case of Shyam Sundar (supra). He submitted that in the case of
Shyam Sundar (supra), appeal was not dismissed, but the
application for condonation of delay, for filing appeal was
dismissed and, therefore, it was considered that the appeal is
dismissed. Learned Counsel further argued that under Rule 3A of
Order XLI of the C.P.C., application for condonation of delay is
W.P.No.2729/2012
preferred, if the appeal is presented after the expiry of period of
limitation specified under the Limitation Act. Learned Counsel
submits that in the case of Shyam Sundar Sarma (supra), such
application under Rule 3A of Order XLI of the C.P.C. was preferred.
However, in the present case, the application is not filed under
Rule 3A of Order XLI of the C.P.C., but it is filed under Section 5 of
the Limitation Act and, therefore, the petition is maintainable. In
support of his submissions, he relied on an unreported judgment
of Allahabad High Court in First Appeal From Order No.1371
of 1999 (Smt.Bhagwati Devi & Ors., Vs. Smt.Angoori Devi
& Ors.) and learned Counsel submitted that when similar issue
was raised, the learned Single Judge of Lucknow High Court has
taken a view that the appeal filed against the order of rejection of
application for condonation of delay, is not maintainable.
6. Both the learned Counsel have strenuously argued this short
point. In the case of Shyam Sundar Sarma (supra), appeal was
not filed but appeal along with application for condonation of
delay was filed and the said application for condonation was
refused, the appeal in the result, was dismissed. In the present
case, appeal was already filed, notices were also served on some
of the respondents. However, it was dismissed for want of
prosecution. If the appeal is dismissed for default under Rule 11
W.P.No.2729/2012
and Rule 17 of Order XLI of the Code of Civil Procedure, then the
remedy available is to apply to the Court for re-admission of the
appeal under Rule 19 of Order XLIII of the Civil Procedure Code. If
that application for restoration or re-admission is rejected, then
the appellant is required to file appeal from the said order, as
provided under Order XLIII, Rule 1 (t) of the Code of Civil
Procedure.
7.
In the present case, the issue is of re-admission of the
appeal, as the appeal is dismissed for default. If the application
for restoration or re-admission would have been rejected, the
appellant had clear remedy under Order XLIII Rule 1 (t) of the
Code of Civil Procedure. In the present case, there is one more
step i.e. filing and refusal of application for condonation of delay
for filing the restoration application. Order XLIII of the Civil
Procedure Code states about the appeals from orders, which are
mentioned under Section 104 of the Code of Civil Procedure.
Thus, Section 104 of the C.P.C. has direct bearing over Order XLIII
of the C.P.C. Thus, the orders which are specifically mentioned
under Section 104 of the C.P.C. and thereby enumerated under
Order XLIII of the C.P.C. are appealable under the caption "
Appeals from orders ". Section 104 (2) of the C.P.C. explains the
W.P.No.2729/2012
scope of Order XLIII of the C.P.C. which reads as, " No appeal
shall lie from any order passed in appeal under this
section ".
8. Under Section 5 of the Limitation Act, application for
condonation of delay is moved and the said provision is not listed
in Rule 1 of Order XLIII of the C.P.C. Though there is provision of
appeal against order of refusal of application for re-
admission/restoration, made under Rule 19 of Rule XLI of the
C.P.C., there is no provision of appeal against order of rejection of
application for condonation of delay. Thus, Rule 1 (t) of Order
XLIII of the C.P.C. specifically covers order of refusal under Rule 19
of Order XLI to readmit, or under rule 21 of Order XLI to re-hear an
appeal. Therefore, submission of Mr Thigle that the petitioners
ought to have filed appeal from order under Order XLIII Rule 1 (t)
of the C.P.C., is not sustainable within the folds of Order XLIII of
the C.P.C.
9. As per Section 100 of the C.P.C., second appeal shall lie to
the High Court on every decree passed in appeal by any Court
sub-ordinate to the High Court. Rejection of the application for
condonation of delay for re-admission, is not a decree. If appeal is
filed and dismissed for default, the remedy is contemplated under
W.P.No.2729/2012
Order XLIII, Rule 1 (t), that means refusal is an order and it is not a
decree. If refusal to readmit or restore would have been
considered as decree, then it would not have been specified under
Order XLIII, but it would have been excluded from the said order
and would have been covered under Order XLII or Section 100 of
the C.P.C. However, it is treated as an order and, therefore,
appeal against order is provided. Hence, it is logical when the
application for condonation of delay is rejected, then by necessary
implication, application for readmission/restoration is also rejected
and for such refusal second appeal is not provided; so also it is not
covered under Order XLIII Rule 1 (t) of the C.P.C. and, therefore,
the petitioners have only remedy available is to prefer petition
under the writ jurisdiction under Article 227 of the Constitution.
10. In the case of Chandu s/o Jagannath Ambekar and anr.
Vs.Digambar Kisanrao Kulkarni (supra), the Division Bench of this
High Court had an opportunity to deal with the issue of
maintainability of the revision under Section 115 of the C.P.C.
against the order of rejection of application for condonation of
delay. In the said matter, the Division Bench has taken a view
that revision under Section 115 of the C.P.C. does not lie against
the order rejecting the application for condonation of delay.
However, the Court has dealt with an application for condonation
W.P.No.2729/2012
of delay, filed under Rule 3A of Order XLI of the C.P.C. and if at all
that application is dismissed as time barred, then it results into
dismissal of the appeal itself. In the present case, as argued by
learned Counsel for the petitioner, the application for condonation
of delay was not preferred under Rule 3A of Order XLI of the
C.P.C., but it was an application under Section 5 of the Limitation
Act. Thus, the ratio laid down in the said judgment is not useful to
the learned Counsel for the respondent on the point of
maintainability of the writ petition, when the order of rejection of
the application for condonation of delay is challenged.
11. In the result, it is held that writ petition is maintainable and
not an appeal under Order XLIII or under Order XLII of the C.P.C. It
is made clear that all contentions including the issue raised under
Order XXII Rule 4 of the C.P.C. are kept open and to be considered
on merit at the time of hearing of the writ petition.
12. This Court places on record appreciation of the able
assistance and co-operation rendered by learned Counsel for both
the parties.
( MRS. MRIDULA BHATKAR, J.)
(vvr/2729.12wp)
