Union Of India, Amravati, Through ... vs Prakash Motilal Khatri And Others
2017 Latest Caselaw 1434 Bom

                                       1                                                               sa119.17


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

                          SECOND APPEAL NO. 119 OF 2017

Union of India, through 
Senior Superintendent of 
Post, Camp - Amravati, 
Taluka and District Amravati.                                    ... APPELLANT

                                         VERSUS

1. Prakash Motilal Khatri,
     aged Major, Occ: Business,
     R/o Camp, Amravati.

2. Ravi Motilal Khatri,
     aged Major, Occ: Business,
     R/o Khatri Compound, Amravati.

3. Varsha R. Khatri,
     aged Major, Occ: Household,
     R/o Near Gorakshan, Akola.

4. Smt. Pushpabai M. Khatri,
     aged Major, Occ: Business,
     R/o Camp, Amravati.                                       ... RESPONDENTS

                                     ....
Smt. M.R. Chandurkar, Advocate for the appellant.
Shri K.P. Mahalle, Advocate for the respondents.
                                     ....


                                        CORAM : PRASANNA B.VARALE, J.

DATED : 04TH APRIL, 2017.

ORAL JUDGMENT :

Admit. Heard finally with the consent of the learned Counsel

appearing on behalf of the respective parties.

2 sa119.17

2. By way of present appeal, the appellant/Union of India

through the Senior Superintendent of Post, Amravati challenges the order

dated 23rd October, 2015 passed by the learned District Judge-3, Amravati

thereby rejecting the application seeking condonation of 142 days' delay in

filing the appeal against the judgment and decree, dated 02.05.2014 passed

by 3rd Civil Judge, Senior Division, Amravati in Regular Civil Suit No. 683 of

2012.

3. The brief facts, which give rise to filing of the present appeal,

can be summarized as under :-

The respondent was the original plaintiff who had instituted a

Suit No. 683 of 2012 for recovery of money. Perusal of the material placed

on record shows that the dispute was in respect of the premises occupied

by the appellant on rental basis. It may not be necessary to refer to the

claim of the plaintiff and the counter submission of the defendants.

Suffice to say that the suit was decreed to the proportionate costs and

further it was directed by the learned Joint Civil Judge, Senior Division,

Amravati to the defendants to pay an amount of Rs.1,30,388/- along with

an interest to the plaintiff from the date of filing of the suit till recovery of

the decreetal amount by the judgment and order dated 02.05.2014. Being

aggrieved by the said judgment and order, the appellant preferred an

appeal before the learned District Judge, Amravati raising various grounds.

The appeal was filed on 07.11.2014 along with the application seeking

3 sa119.17

condonation of delay of 142 days. It was submitted in the application that

the applicant/appellant applied for the copies of the judgment and after

receiving the certified copies, the applicant/appellant was required to take

necessary steps such as receiving opinion from the District Government

Pleader and forwarding the opinion to the Senior Advocate practicing at

High Court and thereafter the opinion was sought for from the Assistant

Solicitor General of India (ASGI). It is further submitted that as these

administrative and procedural aspects were involved, it took some time to

file the appeal. The application was opposed. It was submitted that the

applicant/appellant failed to explain the delay properly. The learned

District Judge, on the ground that except the certified copy of the

judgment, nothing was placed on record to support the contentions of the

applicant. The learned District Judge thus finding no favour with the

applicant/appellant, rejected the application.

4. Smt. Chandurkar, the learned Counsel appearing for the

appellant vehemently submits that the learned District Judge adopted a

hyper technical approach. She further submits that it was the case of the

applicant/appellant that the delay caused in filing the appeal was due to

bona fide and unintentional reasons and the applicant/appellant being a

department of the Central Government was required to take necessary

steps including the procedural and administrative formalities. She also

submits that in the application, the applicant/appellant referred to all

4 sa119.17

these necessary steps including the various opinions sought for from the

Senior Advocate at High Court as well the opinion being sought for from

the ASGI. Smt. Chandurkar, the learned Counsel further submits that the

learned District Judge ought not to have rejected the application on

technical ground and adopting hyper technical approach. She submits

that the applicant/appellant has raised various grounds in the appeal so as

to demonstrate that the learned trial Court erred in arriving at the

conclusion. The learned Counsel further submits that the ground of an

erroneous appreciation of the material is also raised in the appeal. She

also submits that the applicant/appellant may have an opportunity of the

adjudication on the merits of the matter in stead the applicant/appellant

being prohibited to avail the legal remedy on mere technicalities.

5. Shri Mahalle, the learned Counsel for the respondents, in

support of the order passed by the learned District Judge, submits that the

applicant/appellant failed to place on record any material to show that the

procedural and administrative aspects were involved and as no material

was placed on record, no error is committed by the District Judge by

rejecting the application. Shri Mahalle, the learned Counsel places

reliance on the judgment of the Apex Court in the case of Office of the

Chief Post Master General and others .v. Living Media India Limited and

another (reported in 2012 ALL SCR, 892) in support of his submission.

5 sa119.17

6. I have gone through the material placed on record. As the only

issue involved is that whether the application seeking condonation of

delay is properly appreciated by the learned trial Court, it may not be

necessary to refer other details which are already referred to in the other

part of the application. It is now the settled position of law reflected from

the various judgments of this Court as well the judgments of the Apex

Court that while considering the delay, the prime consideration would be

just and bona fide cause being shown by the party. The length of the delay

can be considered on this aspect. Merely because the length of delay is

more, it is not necessary to adopt a hyper technical approach and without

considering the reasons, the applicant is to be mechanically dealt with. In

the present matter, it is not in dispute that the applicant/appellant is the

department of the Central Government. Perusal of the application seeking

condonation of delay shows that in the application, all the details are

referred to involving the administrative and procedural aspects of the

matter. It is stated in the application that the matter was decided by the

trial Court on 02nd May, 2014. Immediately an application seeking copy

was filed on 09.05.2014, the copy was obtained from the trial Court on

23.05.2014 and it was received by the office of the Senior Superintendent of

Post on 26.05.2014. An opinion was sought for from the District

Government Pleader on the very next date i.e. on 27.05.2014. After receipt

of the opinion from the District Government Pleader, Amravati along with

a brief note, Post Master, Nagpur forwarded the papers to ASP Central Sub

6 sa119.17

Division, Amravati. There was also communication forwarded through

email. The matter was then referred to one of the Senior Advocates Shri

Ramesh Agrawal seeking his opinion. Thereafter the opinion was sought

for from Shri Rohit Deo, Assistant Solicitor General of India, High Court of

Bombay, Bench at Nagpur. On 13.08.2014, an opinion was received from

Shri Deo, ASGI. After receiving the opinion from Shri Deo, the necessary

steps were taken for filing the appeal. It is also referred to in the

application that on receiving the opinion from Shri Deo, ASGI, one officer

B. Ganesh, Amravati was directed to take necessary steps in consultation

with District Government Pleader, Amravati. It is stated that due to these

administrative and procedural aspects, 142 days' delay is caused. Thus,

what reflects from the application is that explaining the delay at every

stage namely to the various steps taken as well the authority and the

Counsel from whom the opinion was sought for including the opinion

sought for from ASGI. True, it is that along with the application, the copies

are not placed on record, merely these copies are not placed on record, it

may not be stated that there was no explanation in the application for the

delay caused. The application was opposed by raising ground that the day

to day delay is not explained in the application. Certainly, this could not

have been done in the application as the matter was routed through

various authorities and the Counsel seeking opinion from them.

7. Considering this aspect of the matter, in my opinion, the

7 sa119.17

applicant/appellant has explained the delay and the just, probable,

sufficient and bona fide reasons were elaborately reflected in the

application. The learned District Judge, on the contrary, adopting a hyper

technical approach only on the ground that the correspondence between

the applicant/appellant and the learned Assistant Solicitor General of

India is not placed on record, rejected the application. There was no

reason for the applicant to make untrue statement namely the opinion was

sought for from the ASGI and in the application, the dates of

communications are also referred to. Though the learned Counsel Shri

Mahalle for the respondents places heavy reliance on the judgment of the

apex Court, on perusal of the judgment, it clearly shows that in the said

matter, the Hon'ble Apex Court found that there was no plausible and

acceptable explanation for the inordinate delay of 427 days. Perusal of the

judgment further shows that the department concerned made an attempt

to explain the delay by filing a subsequent affidavit or a better affidavit. An

attempt was made to offer the explanation belatedly to justify a huge delay.

On the backdrop of these facts, the apex Court was of the opinion that

there was no reasonable and acceptable explanation for the delay. As

such, the apex Court found that the department miserably failed to give

any acceptable and cogent reasons sufficient to condone such a huge delay

of 427 days. Though there cannot be any dispute on the proposition of law

reflected in the judgment of the apex Court relied upon by Shri Mahalle,

the learned Counsel for the respondents, in view of the factual aspects

8 sa119.17

referred to above, in my opinion, the judgment of the apex Court relied

upon by Shri Mahalle is of no help to the respondents. I also find

considerable merit in the submission of Smt. Chandurkar, the learned

Counsel for the appellant that the learned District Judge ought to have

given an opportunity to the applicant to have an adjudication on merits in

stead of adopting a hyper technical approach.

8. In the result, the appeal is allowed. The judgment and order

dated 23rd October, 2015 passed by the learned District Judge, Amravati is

quashed and set aside.

JUDGE

*rrg.