Bombay High Court
Sau. Chanda W/O Shankarrao Raut vs Liladhar S/O Pandurang Pohane And ... on 8 March, 2016
Bench: A.B. Chaudhari
sa.414.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 414 /2015
Sau. Chanda w/o Shankarrao Raut
Aged about 49 years, occu: Household
R/o Gond Plot, Wardha
Tah. & Dist. Wardha. ... APPELLANT
v e r s u s
1) Liladhar s/o Pandurang Pohane
Aged about 62 years, occu: Retired
R/o Khadse layout Ward no.2
Batchlar Road, Wardha
Tah. & Dist. Wardha.
2) Smt. Vatsalabai wd/o Anandrao Kale
Aged about 65 uears, occu: household
R/o Apesha Home Society
Gurukunj, Mozari
Tq. Tiosa, Dist.Amravati.
3) Gajanan s/o Anandrao Kale
Aged 37 years, occu: service
R/o Apesha Home Society
Gurukunj, Mozari
Tq. Tiosa, Dist. Amravati.
4) Sou.Manda w/o Vasantrao Dakulkar
Aged about 47 years, occu: Household
R/o Kandhali Tq.Samudrapur Dist. Wardha.
5) Sou. Nanda w/o Namdeorao Barahate
Aged about 45 years, occu;Household
R/o Santaji Nagar
Mehkar , Tq.Mehkar, Dist. Buldhana.
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6) Smt.Vandana wd/o Vijayrao Mahalle
Aged about 42 years, occu: Household
R/o Bhavishya Nirman Nidhi Bhavan
Near Tukdoji Statue
Nagpur,Dist. Nagpur.
7) Sou. Sandhya w/o Gajanan Gadhwe
Aged about 40 years, occu: Household
R/o Bhavishya Nirman Nidhi Bhavan
Near Tukdoji Statue,
Nagpur,Dist. Nagpur. .... RESPONDENTS
...........................................................................................................................
Ms. Ankita Sarkar, Advocate for the appellant
Mr. S.U. Nemade, Advocate for respondent no.1.
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 8th March, 2016
ORAL JUDGMENT:
1. ADMIT, on the following substantial question of law :-
"Whether the lower Appellate Court committed an error in law in
adopting a pedantic approach in refusing to condone the delay
of 178 days in filing the First Appeal under section 96 of the Civil
Procedure Court, before the District Judge? ... Yes
2. Heard learned counsel for the rival parties, at length.
3. The reasons for claiming condonation of delay in filing the First
Appeal before the District Judge were about the illness of the appellant. The
appellant-Sau.Chanda and her husband Shankarrao examined themselves in support
of their prayer for condonation of delay, before the District Judge. They also proved
the medical certificates which were marked Exhs. 27 to 32. The learned lower
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Appellate Court, however, found that there were no sufficient reasons for condoning
delay of 178 days, having recorded the finding that the appellant came to know
about the decision of the Court within one month through her Advocate and
attended the execution proceedings. The Court, further, held that Shankarrao, the
husband of the appellant, nowhere deposed about the illness of the appellant Sau.
Chanda from 16.4.2013 to 14.10.2013.
4. In my opinion, appellant Sau.Chanda, being a woman from rural
area and she having produced the medical certificate, about which there was no
serious challenge., the reason could be accepted. Mr. S.U.Nemade, learned counsel
for respondent no.1, however, contended that the certificates from Doctor were
post-dated. I do not find anything wrong with that. Because the certificates can
be issued after the recovery from illness or as and when needed by a party. At any
rate, it cannot be forgotten that the First Appeal u/s 96 of the Civil Procedure Code
is a matter of statutory right of a party and the civil rights must be decided by the
appellate Court on merits unless the delay is huge. At any rate, the delay was not
inordinate, but was only of 178 days, for which the Court could have compensated
the other side by way of an order of costs. Looking to the fact that appellant-
Chanda hails from a village, the benefit of her she being an illiterate villager could
be extended. At any rate, I am satisfied that the First Appeal should have been
decided on merits rather than throwing it out, on the ground that it was delayed by
178 days. In one of the judgments of the Hon'ble Supreme Court, it has been held
that unless it is found that there is a deliberate and intentional delay to achieve
something nefarious, the court should not be loathe in condoning the delay. In this
case, I do not find any such existing reason. I, therefore, answer the substantial
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question of law in the affirmative.
5. Mr.S.U. Nemade, learned counsel for respondent no.1 contended that
he is anxious about the delay that would occur hereafter in decision of the Appeal
itself. Taking into consideration his grievance, I think the following order would
subserve the interest of justice :
ORDER
1) Second Appeal No.414/2015 is allowed.
2) The impugned order dated 04.09.2014 passed by learned Ad-hoc District
Judge -1, Wardha in MARJE No.190/2013 at Exh.1, is set aside.
3) The Regular Civil Appeal shall be registered. After registration, the Appeal
shall be decided by the lower Appellate Court after hearing all the concerned
parties, within a period of ten months from the date of appearance of the parties,
before it.
4) April,2016.
The parties to appear before the lower Appellate court on 18 th
5) No order as to costs.
JUDGE
sahare
