Bombay High Court

Manyar Hasankha Hanifkha And ... vs Rahimbeg Jamsherben Mirza And ... on 21 September, 2016

Bench: S.P. Deshmukh

                                         1                      SA-108.15.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                         
                         BENCH AT AURANGABAD

                        SECOND APPEAL NO. 108 OF 2015




                                                 
                                      WITH
                       CIVIL APPLICATION NO.3407 OF 2015
                                      AND
                      CIVIL APPLICATION NO. 15102 OF 2015




                                                
     1.       Manyar Hasankha Hanifkha
              Age: 53 years, occupation :
              Agriculture,




                                      
     2.       Hanifabi Hanifkha,
                             
              Age: 65 years, occup. Household,

              Both residents of : At Songir,
                            
              Tluka and District Dhule

     3.       Shaikh Majid Shaikh Ismail,
              Age: 56 yeas, occup. Labor,
      


     4.       Sufiyabi Shaikh Ismail,
              Age: 61 years, occupation:household,
   



     5.       Rabiyabi Shaikh Ismail,
              Age: 86 years, occupation: household,     .. Appellants/
                                                        Orig.Defendants





              Residents of : At village Advad,
              Taluka Chopada, District Jalgaon
                      Versus
     1.       Rahimbeg Jamsherben Mirza,
              Age : 72 years, occupation : Agril.





              and Contractor, Resident of :
              At Songir, Taluka and District Dhule

     2.       Jitunbee Ismail,
              Age: 67 years, occup. Household,
              Resident of : At village Advad,
              Taluka Chopada, District Jalgaon
              since deceased, hence through
              Legal representatives :-




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                                          2                       SA-108.15.doc


     2A.      Nabi Shaikh Jitru Manyar,




                                                                          
              Age: 70 years, occup. Agril.,
              R/o At villge Advad,
              Taluka Chopada, District Jalgaon




                                                  
     2B.      Samimbano Hasankhan Manyar,
              Age: 45 years, occup. Agril.
              R/o At Songir, Taluka and




                                                 
              District Dhule

     2C.      Rajjak Abdul Nabi Manyar,
              Age 40 years, occup. Labour,
              R/o At village Advad, Taluka




                                       
              Chopada, District Jalgaon

     2D.
                             
              Shahinbano Firozkha Manyar,
              Age: 38 years, occup. Agril.,
              R/o At Songir, Taluka and
                            
              District Dhule

     2E.      Nisar Abdul Nabi Manyar,
              Age: 35 years, occup. Agril.,
              R/o at village Advad, Taluka
      


              Chopada, District Jalgaon
   



     2F.      Ashpak Abdul Nabi Manyar,          .. Respondents/
              Age: 30 years, occup. Agril.,       [No.1 is orig.plaintiff,
              R/o t village Advad, Taluka          No. 2 is orig. Deft.
              Chopada, District Jalgaon             No. 4/App]





                           ------
              Mr. Mukul S. Kulkarni, Advocate for appellants
              Mr. C. R. Deshpande, Advocate for respondent no.1
              Mr. D. A. Madake, Advocate for respondents no.2A to 2F





                                   CORAM :    SUNIL P. DESHMUKH, J.

                                   DATE :     21st September, 2016


     ORAL JUDGMENT:

1. Admit. By consent of parties, heard finally.

3 SA-108.15.doc

2. Rejection of civil miscellaneous application no. 60 of

2012 under order dated 05-02-2014 by the District Judge-4,

Dhule, by refusing to condone delay of 96 days in

approaching the appellate court under regular civil appeal is

the subject matter in present second appeal.

3. After hearing learned counsel for the parties, the

question which may be stated to be substantially arise, is ;

'' As to whether the impugned order dated 05-02-2014 by the District Judge-4, Dhule, refusing to condone delay in filing regular civil appeal would be sustainable in the facts and circumstances and the overall legal position emerging in the matters of condonation of delay ? ''

4. The factual position which does not appear to be in

dispute is, the parties to the second appeal claim ownership

over property bearing C.T.S. No. 917 situated at Songir,

Taluka and District Dhule under the transactions entered into

in their respective favour through original holder of said

property and as such tussle over title to the property had

ensued litigation in the form of special civil suit no.152 of

2009 at the instance of present respondent No. 1 for

declaration and possession. Said suit came to be decreed on

24-02-2012.

5. It further appears that application by present appellants

- original defendants no. 1 to 3, 5 and 6 for certified copies of

4 SA-108.15.doc

the judgment and decree had been lodged on 27-02-2012

and the same were received at their end on 30-03-2012.

Regular civil appeal had been presented in the appellate court

on 02-07-2012 and in the process, there had been a delay of

about 96 days and the civil miscellaneous application no. 60

of 2012 seeking condonation of delay in lodging said appeal

has been dismissed under impugned order dated 05-02-2014

as stated hereinbefore.

6. The appellants have contended, they were under the

impression that the period for filing appeal is ninety days and

such an impression had been carried by them as per the

understanding given to them by someone in the office of the

court and non suspecting appellants had believed the same.

This is the major reason under which delay is contended to

have occurred.

7. Whereas, it is the case of the present respondent no. 1

- original plaintiff that the reason placed forth by appellants

has no credibility and it is a runaway reason to get out of the

inability to give appropriate justification for condonation of

delay in lodging the appeal. As far as other reason is

concerned, there has been enhancement in the appellate

5 SA-108.15.doc

jurisdiction of the district court from a long time even before

suit has been decided and special civil suit itself had been

valued below ` 2,00,000/- and as such appeal could have

been lodged immediately after summer vacation had been

over. However, the appellants have faltered in making

approach as they were negligent and non-vigilant.

8. The appellate court while deciding the matter appears to

have considered that, may be someone from the office of the

court had given the appellants to understand that the appeal

period is ninety days, however, it ought to have been got

verified from the lawyer and more so when appellants had

engaged a lawyer in the appellate court and not doing so is a

symptom of negligence and non-vigilance. What appears to

have weighed with the appellate court is that ignorance of law

is not a sufficient cause and particularly that non-taking of

proper advice from the advocate tantamounts to negligence.

9. Learned judge of the appellate court also appears to

have considered the citation relied on, on behalf of the

present respondent no. 1 that only a cause is not sufficient

and what is necessary is that there should be subsistence of

sufficient cause and the reasons which appear to have been

6 SA-108.15.doc

given for condonation may not tantamount to sufficient cause

in the present proceedings. He has further considered other

citation that expiry of limitation causes accrual of valuable

right in the party which cannot be taken away for asking by

defaulting party.

10. While the position appears as aforesaid, one may have

to take into account that the litigation is in respect of

immovable

property, seeking declaration of title and

possession and the appellants claim ownership through

certain transaction, so is the case of respondent no.1-original

plaintiff.

11. The suit by respondent no. 1 has been decreed and the

appellants intend to proceed against the same as there

appears to be such intention all along, albeit they have

approached the court belatedly and purport to reason the

same out to an erroneous impression and further to that the

position from the recent past has been that the appeals from

special civil suit were being carried to high court. The reasons

given by the appellants may not be at the outset can be said

to be implausible. It is not the case that appeals being

carried to high court have a limitation period of ninety days,

7 SA-108.15.doc

whether it is a first appeal or a second appeal and for quite a

long time the situation had been that generally, in respect of

decisions in special civil suits, the appeals were requied to be

to high courts. Enhancement in jurisdiction appears to be in

recent past before decision in special civil suit. The other fact

that will have to be taken into account is that since the matter

is in respect of immovable property, by causing deliberate or

intentional delay, the appellants were unlikely to earn any

benefit in the process.

12. In aforesaid circumstances, the guidelines as have been

laid down in a decision by the supreme court in paragraph no.

3 of its decision in the case of Collector, Land Acquisition, Anantnag

and another vs. Mst. Katiji, reported in AIR 1987 SC 1353 would be

useful which are reproduced hereinbelow for ready reference.

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the

parties.

(3) '' Every day's delay must be explained '' does not mean that a pedantic approach should be made. Why not every hour's delay. Every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

                                                 8                         SA-108.15.doc


              (5)     There is no presumption that delay is occasioned deliberately,

or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

13. In present case, since the delay is of ninety six days, it

does not appear to be, in the circumstances, an inordinate

delay and, therefore, I prefer to be guided by the guidelines

of the supreme court as aforesaid. It further may be taken

into account that a stickler;s approach may in the given

circumstances lose a legitimate cause and jurisprudence

abhors such a situation.

14. Having regard to aforesaid, I am inclined to answer the

substantial question of law holding that the appellate court

would have been guided by the guidelines of the supreme

court as referred to hereinbefore, adopting a liberal approach.

15. The second appeal, in the circumstances, stands