Mahesh S/O Keshavrao Barai vs Maroti Raghoba Wandhare And 2 ...
2016 Latest Caselaw 658 Bom

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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT NAGPUR, NAGPUR.




                                                                                       
                                                                ...

SECOND APPEAL NO. 202/2015

Mahesh s/o Keshavrao Barai Aged about 50 years, occu; service R/o Balaji Ward, Chandrapur Tah. & Dist. Chandrapur. ... APPELLANT

v e r s u s

1) Maroti Raghoba Wandhare Aged about 74 years, occu: Cultivation

R/o Pellora Po: Nandgaon (Suryal) Tahsil Rajura, Dist.Chandrapur.

2) Yeshwant s/o Marotrao Manthanwar Aged major, occu: Contractor

R/o Balaji Ward, Near Shree Talkies Chandrapur Dist. Chandrapur.

3) Prashant Madgirwar Aged major, occu: Business R/o Gandhi Chowk, Rajura,

Tah.Rajura, Dist. Chandrapur. .... RESPONDENTS

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Mr. M.I. Dhatrak, Advocate for the appellant Mr. S.B.Tiwari h/for Mr. R.Vyas, Advocate for respondent no.1. Respondent Nos. 2 & 3 served.

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CORAM: A.B.CHAUDHARI, J .

                                                         DATED :     16th  March,  2016

    ORAL  JUDGMENT:

1. This Second Appeal is directed against the order dated 4th

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February, 2015 (below Exh.1) in Misc. Civil Application No. 127/2015

by which the prayer for condonation of delay of 66 days in filing the

Appeal, under section 96 of the Civil Procedure Code was rejected by the

learned District Judge-3, Chandrapur. This Court, upon learned the

learned counsel for the rival parties, had made the following order, on

August 14, 2015 :

" Heard.

ADMIT, on the following substantial question of law stated in the memo of appeal, which is as under :-

"Whether the learned Appellate Judge has rightly considered the expression "sufficient cause" used in

Section 5 of the Limitation Act. Whether it is rightly

considered by the First Appellate Court to secure the ends of justice while refusing to condone the delay of 66 days in filing the Appeal?"

The record and proceedings be called for."

2. Today, this Appeal is listed for hearing on Civil Application

No.343/2015 for grant of stay and C.A. No. 344/2015 seeking

permission to file certified in order matters category. After hearing the

learned counsel for the parties for quite some time, this Court thought it

better to take up the Second Appeal itself for final hearing, in view of the

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fact that if the appellant succeeds, the first Appellate Court will have to

hear the Appeal on merits. This Court, therefore, thinks that there is

no point of keeping the Appeal pending after admission, for another

decade if the result would be the same after a decade. Learned counsel

for the parties have, therefore, been heard on the merits of the Appeal.

3. Mr. S.B.Tiwari, h/f Mr. R.Vyas, learned counsel for the

respondent no.1 has opposed the Appeal and has produced the certified

copies of the Order Sheet (Roznama), which I have carefully perused.

I have also perused the reasons recorded by the learned appellate Judge

wherein the appellate Judge found that the reasons given for

condonation of delay of 66 days were incorrect and, therefore, though

the delay was of 66 days, the same was not liable to be condoned,

because of the incorrect information given to the Court. I have perused

paragraph 3 of the Application for condonation of delay that was filed

before the lower Appellate Court. Perusal of paragraph 3 of the

Application shows that the averments are as vague as they could be

and appeared to have been drafted obviously by the counsel for the

appellant. In my opinion, it is the duty of the Court to find out the truth

and, for that purpose, to go to the root of the matter. In this case, fairly

the learned counsel for the respondent no.1 made available the entire

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Roznama. In the subject matter, it appears from the records that because

of the enhancement of pecuniary jurisdiction the of the Courts, the Suit

that was pending the Court of Joint Civil Judge, Sr.Dn., Chandrapur was

required to be transferred to Rajura Court and, accordingly, the same

was transferred to Rajura Court. Perusal of the order sheet shows that

the Suit after transfer was made over to Joint Civil Judge, Jr.Dn.,

Rajura vide order sheet dated 30.1.2012 and notice through Court

motion was issued by that Court on 7th March, 2012. Thereafter, it

appears from the order sheet dated 13th July, 2012 that the case was

with Joint Civil Judge Jr.Dn. Rajura. The order sheet dated 10.8.2012

thereafter shows that the suit was received from 5th Joint Civil Judge,

J.D.Rajura. Thereafter, the order sheet shows that it was with the 4th

Joint Civil Judge, and no steps were taken by the plaintiff. The order

sheet shows receipt by the 4th Joint Civil Judge J.D. That means the

4th Joint Civil Judge, J.D. received the file from 5th Joint Civil Judge,

J.D. Thereafter there is no order of issuance of process from this last

court i.e. 4th Joint Civil Judge JD Rajura. It is settled legal position that

upon transfer of cases, the transferee Court is under a duty in

accordance with the Civil Manual, that the notices on receipt of the suit

are required to be issued to all the parties to the suit. However in the

instant case, the last Court that received the file was 4th Joint Civil

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Judge, but there is no endorsement for issuance of process as the last

transferee Court. Therefore, even if the reason was found to be

incorrect, the fact remains that there is no compliance required

procedure, namely, to issue notice upon receipt of the case by transferee

Court to the parties and get them served. In my opinion, therefore, and

particularly when the delay was of 66 days and for the reasons stated by

me above, the Appellate Court ought to have condoned the delay, since

the right to get decision in the First Appeal is a matter of right in the

party since important civil rights of the parties are decided by the

Court on facts and law rather than throwing out the lis. The substantial

question of law mentioned above, is answered in affirmative. In that

view of the matter, I think the following order will have to be passed:-

ORDER

1) Second Appeal No.202/2015 is allowed.

2) Misc.Civil Application No.127/2013 for condonation of delay is

allowed. The delay of 66 days is condoned.

3) The First Appeal shall now be registered by the lower Appellate

Court as regular Civil Appeal.

4) Parties to appear before the lower Appellate Court on 2nd May,

2016 and shall abide by further directions of the lower Appellate Court.

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    5)       No order as to costs.




                                               
                                            JUDGE

    sahare