Bombay High Court
Smt. Prabhabai Wd/O. Pandurang ... vs Fulchand S/O. Chintaman Selokar on 5 May, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.206 OF 2016
APPELLANTS: 1. Smt. Prabhabai Wd/o Pandurang
Khandekar, Aged about 67 yrs, Occ.
Ori. Defendants
Household,
before first
appellate Court.
2. Shri Parasram S/o Pandurang
Khandekar, Aged about 57 yrs, Occ.
Service,
ig 3. Shri Namdeo S/o Pandurang
Khandekar, Aged about 36, Occ. Service,
Appellant Nos1,2,3 R/o Bhilgaon, Tah.
Kamptee, Dist. Nagpur.
4.
Ku. Sheela D/o Pandurang Handekar,
(Smt. Sheela W/o Dharmendra Babade)
Aged about 27 yrs, Occ. Household, R/o
Village Saoli, Tah. Parshioni, Dist.
Nagpur.
-VERSUS-
RESPONDENT: Fulchand S/o Chintaman Selokar, Aged
about 58 yrs, Occ. Agriculturist, R/o
(Ori. Plaintiff in
Dhilgaon, Tah. Kamptee, Dist. Nagpur.
first appellate
Court)
Shri S. M. Pande, Advocate for the appellants.
Shri R. R. Dawda, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: 5
th MAY, 2016.
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ORAL JUDGMENT :
1. Pursuant to the notice for final disposal of the appeal
issued on 26-4-2016, the learned Counsel for the parties have been
heard at length on the following substantial question of law:
Whether the delay in filing the appeal is liable to be
condoned in view of the provisions of Section 14 of the Limitation
Act, 1963?
2. The respondent is the original plaintiff in Special Civil
Suit No.506 of 2003. This suit was filed for seeking specific
performance of agreement dated 27-3-2002 in respect of the
agricultural land admeasuring 0.31R. The original defendant -
Pandurang was served with the suit summons. He, however,
expired during pendency of the suit and the present appellants
who are his legal heirs were brought on record. The written
statement filed earlier by Pandurang came to be adopted. The trial
Court on 16-2-2008 decreed the suit. The respondent herein filed
Special Darkhast No.159/2008 on 24-4-2008. The present
appellants entered their appearance therein on 29-7-2008. On
19-9-2008, the appellants filed an objection to the execution
proceedings below Exhibit-15. A reply to the aforesaid objection
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was filed by the decree holder on 9-3-2011. The executing Court
by order dated 28-3-2014 rejected the objection raised by the
appellants. This order dated 28-3-2014 was challenged by the
appellants in Writ Petition No.4325/2014. By judgment dated
27-11-2015, the writ petition came to be dismissed upholding the
order of the executing Court. On 18-12-2015, the appellants filed
an appeal under Section 96 of the Code of Civil Procedure, 1908
along with an application for condoning delay in filing said appeal.
This application was opposed by the respondent by filing reply. By
the order dated 29-1-2016, the appellate Court rejected the
application for condonation of delay. Hence, the present second
appeal.
3. Shri S. M. Pande, the learned Counsel for the
appellants submitted that the appellate Court ought to have
condoned the delay in preferring the appeal under Section 96 of
the Code. He submitted that the appellants were pursuing their
remedies in the execution proceedings that had been filed by the
respondent. According to him, the period from 29-7-2008 when
the appellants were served in the execution proceedings till the
dismissal of the writ petition filed by them on 27-11-2015 should
be treated as the period that was spent bonafidely in prosecuting
another remedy. He submitted that a specific objection to the
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validity of the decree had been raised in the execution proceedings
and the entire period that had been spent for prosecuting the same
deserves to be taken into consideration. Relying upon the
provisions of Section 14 of the Limitation Act, 1963 (for short, the
said Act), it was submitted that the time spent in pursuing the
aforesaid objection before the executing Court stands explained.
Considering the nature of objecion raised by the appellants which
was with regard to validity of the decree passed, it could be said
that the challenge was bonafide and, therefore, this period
deserves to be excluded. He submitted that the appellate Court
without considering these aspects of the matter proceeded to reject
the application for condonation of delay. In support of his
submissions, the learned Counsel placed reliance on the judgments
of the Hon'ble Supreme Court in M. P. Steel Corporation v.
Commissioner of Central Excise, (2015) 7 Supreme Court Cases 58
and N. Balakrishnan V. M. Krishnamurthy (1998) 7 Supreme Court
Cases 123. He also relied upon the judgment of learned Single
judge in Vinodkumar Vs. Kailashkumar 2011(1) Mh.L.J. 269. He,
therefore, submitted that the delay deserves to be condoned and
the proceedings deserve to be decided on merits.
4. Aforesaid submissions are opposed by Shri R.R.
Dawda, the learned Counsel for the respondent. According to him,
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the appellants were not entitled to have the delay condoned as
there was no proper explanation for the same. There was no due
diligence on the part of the appellants. Even the objection filed in
the executing Court was after the period of limitation for filing the
appeal and, therefore, the appellate Court had rightly rejected the
said application. He urged that the period from 29-7-2008 till
27-11-2015 could not be excluded by relying upon the provisions
of Section 14 of the said Act. It was then submitted that the
conduct of the appellants was such that they permitted the decree
to be passed by the trial Court and did not file any appeal within
the prescribed period of limitation. According to him, the
proceedings were being prolonged by the appellants on one count
or the other. He referred to the application for condonation of
delay and submitted that no sufficient cause had been mentioned
therein to have the delay condoned. In support of his submissions,
the learned Counsel placed reliance on the decision in Kamlabai
vs. Ganpat 2007(1) Mh.L.J. 807 and M/s K.M. Palve v. State of
Maharashtra and Anr. 2008 AIHC 50. It was, therefore, submitted
that no substantial question of law arose for consideration.
5. With the assistance of the learned Counsel for the
parties, I have perused the documents filed on record. The dates
mentioned herein above are not in dispute. The material dates
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which require consideration while answering the substantial
question of law are that the suit was decreed on 16-2-2008 and
after the execution proceedings were filed on 24-4-2008, the
appellants had appeared on 29-7-2008. The objections filed by
them were rejected by the executing Court on 28-3-2014 and the
writ petition challenging said order was dismissed on 27-11-2015.
The appeal along with application for condonation of delay was
filed on 18-12-2015.
ig The aspect of applicability of the provisions of Section
14 of the said Act in aforesaid background requires consideration.
The Hon'ble Supreme Court in M. P. Steel Corporation (supra) after
considering its earlier judgments observed in para 49 of its
judgment that the object of Section 14 of the said Act is that if its
conditions are otherwise met, the applicant should be put in the
same position as he was when he started an abortive proceeding.
There has to be absence of negligence or inaction. It has been held
that the time spent in prosecuting another civil proceeding with
due diligence needs to be construed in a manner which advances
the object sought to be achieved.
The expression 'other cause of like nature' in Section
14 of the said Act has been considered in Roshanlal Kuthalia &
others Vs. R. B. Mohan Singh Oberoi (1975) 4 SCC 628 and it has
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been held that any circumstance either legal or factual which
inhibits entertainment or consideration by the Court of the dispute
on merits comes within the scope of Section 14 of the said Act and
a liberal touch must inform the interpretation of the said Act which
deprives the remedy of one who has a right.
7. If in the light of the aforesaid legal position the facts of
the present case are examined, it can be seen that after service of
the proceedings for execution initiated by the respondent, the
appellants had entered appearance on 29-7-2008. They filed their
objections on 19-9-2008 and the same came to be rejected on
28-3-2014. The order of the executing Court was confirmed by
this Court on 27-11-2015. Thus, by considering the objection
raised to the validity of the decree in the execution proceedings
itself, as a bonafide attempt of pursuing a legal remedy it can be
said that at least from 29-7-2008 till 27-11-2015, the appellants
would be entitled to the benefit of exclusion of said time on
principles analogous to Section 14 of the said Act. These
proceedings turned out to be abortive and applying the expression
'other cause of like nature' the aforesaid period can be taken into
consideration.
8. It is, however to be noted that the Civil Court decreed
suit on 16-2-2008. Even if the period from 29-7-2008 and onwards
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is permitted to be excluded by relying upon the provisions of
Section 14 of the said Act, it would be necessary to consider
whether any sufficient cause has been shown by the appellants for
the period prior to their appearance in the execution proceedings.
It would be necessary to note the observations in para 52 of the
judgment of the Hon'ble Supreme Court in M. P. Steel Corporation
(supra) While considering the question whether the period prior to
institution of a proceeding that turns out to be abortive could be
also excluded, it was observed by the Hon'ble Supreme Court as
under:
"52.....................................................................
The period prior to institution of the initiation
of any abortive proceeding cannot be excluded
for the simple reason that Section 14 does not
enable a litigant to get a benefit beyond what is
contemplated by the Section--that is to put the
litigant in the same position as if the abortive
proceeding had never taken place."
9. From the aforesaid observations, it is clear that the
period prior to institution or initiation of the abortive proceedings
cannot be excluded by relying upon the provisions of Section 14 of
the said Act. The prior period would have to be considered in the
light of provisions of Section 5 of the said Act. It would, therefore,
be necessary to consider the averments made by the appellants in
the application for condonation of delay with regard to said
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period. In para 3 of the application, there is reference to the
decree being passed on 16-2-2008 by the trial Court. In para 4
and onwards, there is reference to filing of execution proceedings
by the respondent. It is pertinent to note that after the judgment
dated 16-2-2008 or some short period thereafter till the service of
the notice in the execution proceedings, there is no explanation
furnished by the appellants for their inaction in taking any steps
during said period. In fact, the application is totally silent in that
regard. After referring to the passing of the judgment dated
16-2-2008, a reference has been made directly to the raising of
objection in the execution proceedings. It is not the case pleaded
that the appellants were not aware that the suit was decreed on
16-2-2008 and that they got knowledge about it for the first time
when they received the notice in the execution proceedings. The
judgment of the trial Court dated 16-2-2008 indicates that they
were duly represented by their counsel in the trial Court. There is,
therefore, complete absence of any reason whatsoever with regard
to the time spent from 16-2-2008 till 29-7-2008. This period is of
more than five months. Even if it is assumed that the period of
thirty days was available for filing an appeal and that period was
liable to be excluded, there is no explanation for the remaining
period. Thus, even if the appellants are placed in the same position
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as if the abortive proceedings had never taken place, they were
required to at least furnish some reason/explanation for the period
after passing of the decree on 16-2-2008 till their appearance in
the execution proceedings on 29-7-2008. In absence of such
explanation, the delay for said period cannot be condoned under
Section 5 of the said Act. The observations in Kamlabai Shrimal
and anr as well as in M/s K. M. Palve (supra) support the
submissions made in that regard on behalf of the respondent.
ig Thus, from the aforesaid, it can be said that though the
appellants were pursuing other proceedings from 29-7-2008 till
27-11-2015 which period can be excluded on principles analogous
to Section 14 of the said Act, the period from 16-2-2008 and the
delay till 29-7-2008 remains unexplained. In the light of this
aspect, it cannot be said that the appellate Court was not justified
in rejecting the application for condonation of delay. As observed
in N. Bala Krishnan (supra), if the first Court refuses to condone
the delay, it is open for the superior Court to consider the entire
matter afresh and come to its own finding. Thus, after considering
the entire matter afresh and in absence of any explanation for the
aforesaid period, I do not find that the appellate Court has
committed any error in rejecting the prayer for condonation of
delay. The substantial question of law is answered by holding that
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though the period from 29-7-2008 till 27-11-2015 can be excluded
on principles analogous to Section 14 of the said Act as time spent
in prosecuting the other proceedings, there is absence of any
explanation for the period of delay from 16-2-2008 till 29-7-2008.
11. In view of aforesaid, there is no case made out to
interfere. The second appeal is dismissed with no order as to costs.
JUDGE
//MULEY//
