Gulabchan Fakirchand Gandhi Died ... vs Indubai Pundlik Jape Died Lrs ...
2017 Latest Caselaw 1467 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD
                     WRIT PETITION NO. 11584 OF 2016


          Gulabchan Fakirchand Gandhi,
          deceased, through his legal
          representatives :-

 1)       Kiran Gulabchand Gandhi,
          Age 33 years, occup: Business,

 2)       Sarla Dhanesh Bhalgat,
          Age 34 years, Occup. Household,

          Nos. 1 and 2 R/o Kolpewadi,
          Tq. Kopargaon, Dist. Ahmednagar,

 3)       Mandabai Amrutlal Gehlot,
          Age 58 years, Occup: Household,
          R/o Raikar Chal, Ward No. 3,
          Shrirampur, Tq. Shrirampur,
          District Ahmednagar,

 4)       Chandabai Mithulal Bhalgat,
          Age 53 years, Occup : Household,
          R/o Wakadi, Tq. Rahata,
          District Ahmednagar,

 5)       Mayabai Rajkumar Bhandari,
          Age 48 years, Occup: Household,
          R/o Rahui Factory, Tq. Rahuri,
          District Ahmednagar,

 6)       Kalpana Dilipkumar Bora,
          Age 43 years, occup.: Household,
          R/o Pimpri Chinchwad, Kolpewadi,
          Tadenagar, Pune - 13

 7)       Sunita Anilkumar Bora,
          Age 41 years, occup. Household,
          R/o Pimpalgaon Malvi,
          Tq. and Dist. Ahmednagar,




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 8)       Prakash Gulabchand Gandhi,
          Age 51 years, Occup.: Business & agri. .. Petitioners/
          R/o Sawli Vihar Bk. Tq. Rahata,           original
          District Ahmednagar                       defendants

                  versus

 1)       Indubai Pundlik Jape, deceased,
          through legal representatives :-

 1-A) Shakuntala Laxman Shirsath,
      Age Major, Occup: Household,
      R/o A/p Deswandi, Tq. Rahuri,
      District Ahmednagar

 1-B) Mandakini Bhagwat Agalawe,
      Age Major, Occup: Household,
      R/o Sawali Vihir Bk. Tq. Rahata,
      District Ahmednagar

 1-C) Shashikala Keshav Musmade,
      Age Major,Occup: Household,
      R/o Tambhere, Tq. Rahuri,
      District Ahmednagar

 1-D) Ratnamala Dilip Patil
      Age Major, Occup. Household,
      R/o Sawali Vihir Bk. Tq. Rahata,
      District Ahmednagar

 2)       Haribhau Pundlik Jape,
          Age 53 years, occup. Household &
          Agri., R/o at present 5519,Maliwadi,
          District Ahmednagar

 3)       Chandrakant Pundlik Jape,
          Age 41 years, occup: Household,
          R/o Sawali Vihir Bk., Tq. Rahata,        .. Respondents/
          District Ahmednagar                        Orig. Plaintiffs
                       ----
          Mr. Uday S. Malte, Advocate for petitioners
          Mr. P. B. Shirsath, Advocate for respondents No. 1-A to 3




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                                   CORAM :       SUNIL P. DESHMUKH, J.

                                   DATE :        5th April, 2017


 ORAL JUDGMENT :

1. Rule. Rule made returnable forth with. Writ petition is

taken up for final disposal by consent of learned counsel for

appearing parties.

2. The subject - matter of challenge in this writ petition is

order dated 05-03-2016 passed on Exhibit - 1 in civil delay

application no. 49 of 2014 whereunder learned judge of the

appellate court [Additional Sessions Judge, Kopergaon]

rejected the request for conodonation of delay in making

application seeking restoration of regular civil appeal no. 47 of

2011 which had been dismissed on 11-03-2014 in default.

3. Regular civil suit no. 674 of 2004 [erstwhile regular civil

suit no. 104 of 2004] for recovery of possession of gut

number 195 admeasuring 2.12 acre situated at village

Savlivihir Bk. Taluka Rahata at the instance of present

respondents had been decreed under judgment and order

dated 16-04-2011 by trial court [Civil Judge, Junior Division,

Rahata]. Aggrieved by said judgment and decree, aforesaid

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regular civil appeal no. 47 of 2011 had been filed by present

petitioners - defendants in said suit. Due to absence of

petitioners' advocate on 11-03-2014, said appeal had been

dismissed in default. To set aside the order of dismissal of

appeal and have the same restored, petitioners had filed

application on 19-09-2014 along with application for

condonation of delay in filing restoration application which

was belated by about 160-161 days since the limitation

prescribed under the Limitation Act, 1963 for filing such an

application is thirty days.

4. In the application for condonation of delay, the

petitioners had referred to that they had become aware

around August, 2014 about order of dismissal of appeal dated

11-03-2014 while they had seen certified copy of said order

on 28-08-2014. It is their case that there had been

understanding between them on one hand and their advocate

on the other that their day to day attendance may not be

necessary in prosecution of the appeal and further the same

is not required.

5. On 11-03-2014, petitioners' advocate could not attend

to the proceedings in said regular civil appeal since he had

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been indisposed. The advocate concerned is from different

place than where the regular civil appeal had been pending,

that is to day, the advocate hails from Shrirampur whereas

proceedings are pending in court at Kopargaon. Petitioner no.

1 also comes from different place, namely, Rahata which is at

some distance from Kopargaon. Petitioners no. 2 to 7 are

married daughters of petitioner no. 1 and living at different

places. Dismissal of appeal as such had been noticed by

petitioners only in August, 2014 and accordingly delay

condonation application to present restoration application had

been filed.

6. It has been the contention on behalf of the petitioners

that having regard to relevant provisions under Order XLI and

rules thereunder particularly rule 19 of the Code of Civil

Procedure, 1973, one more remedy had been available about

re-admission of appeal on dismissal of the same in absence

which does not appear to have particular period of limitation.

It is in the circumstances, in the interest of justice and for the

reasons contained in the application, delay was requested to

be condoned.

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7. Present respondents - who are also respondents in said

proceedings filed reply at Exhibit 24 and resisted aforesaid

application for condonation of delay, contending that the

proceedings, regular civil suit no. 104 of 2004 had been

prolonged due to petitioners till 2011 and after judgment and

decree in 2011, petitioners-defendants had preferred appeal

with a view to deprive the respondents - plaintiffs of fruits of

the decree and were interested only in keeping the appeal

pending and with that intention they had been before the

appellate court. Petitioners and their advocate remained

absent on number of dates in appeal and, therefore,

ultimately appeal was dismissed on 11-03-2014 in default.

There was no sufficient ground for non appearance of the

petitioners in appeal and also for delay in making application

for restoration of appeal. Delay is not sufficiently explained

and as such the application was requested to be rejected.

8. The appellate court considered that suit had been

instituted in 2004 and was decreed in 2011 and aggrieved by

the same, writ petitioners - appellants had preferred regular

civil appeal. Said appeal had been dismissed for want of

presence of petitioners-appellants and their advocate when

the matter was called out on 11-03-2014. The appellate

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court further considered that thirty days period has been

prescribed for restoration of appeal on dismissal in default.

9. The appellate court considered that the petitioners have

submitted, there was understanding between them and their

advocate that it is not necessary for them to attend the

appeal on each and every date and the matter would be

looked after by the advocate. It is under these circumstances,

the matter was not attended to by the petitioners on

11-03-2014 and their advocate also could not attend it due to

illness. The petitioners did not get knowledge about dismissal

of appeal till August, 2014 and as such they have contended

that delay has not been caused deliberately or negligently and

it is largely attributable to the default by their advocate and

they should not suffer due to fault of advocate.

10. In support of their submissions, the petitioners had

relied on quite a few cases.

11. The respondents on the other hand opposed aforesaid

submissions, contending that the matter was deliberately

prolonged by the petitioners initially in the suit and thereafter

in the appeal intentionally keeping the same pending and as

such the matter was not being attended to by the petitioners

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and their advocate. After waiting for some dates, ultimately,

the court had no alternative but to dismiss the appeal on

11-03-2014 for absence of the petitioners and their advocate.

12. Apart from aforesaid, it is the contention of the

respondents that the petitioners had not prosecuted appeal

and it is only after warrant in execution proceedings that they

had filed application for condonation of delay in restoration

application. The record shows that the advocate for the

appellant was not ailing on 11-03-2014 but, he, in fact, on

that date had attended to some proceedings at different place

i.e. Sangamner and thus the reason given for delay

condonation is not proper and the delay has not been caused

for the reasons which can be termed as sufficient cause.

13. Upon aforesaid submissions, the learned appellate judge

has observed that it is only the contention of the petitioners

that on 11-03-2014 while regular civil appeal no. 47 of 2011

was called for hearing, their advocate was absent due to

illness. Learned judge appears to have considered that the

application does not indicate that even after 11-03-2014,

advocate for petitioners was suffering illness. No affidavit of

the advocate concerned is filed by petitioners on record to

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show that he was suffering illness on that particular date and

thereafter suffered continuous illness. Petitioners claimed to

have got knowledge in August, 2014 of dismissal of their

appeal. Learned judge observed that the petitioners had

produced certificate of illness of their advocate issued by

Sanjivani Surgical Hospital to show that he was suffering from

extreme fever from 05-03-2014 to 20-03-2014. According to

the certificate, the advocate was fit to join from 21-03-2014.

The learned judge, under the circumstances, had considered

that after 20-03-2014 the advocate must have attended the

court. As such, there had been no impediment for making

application for restoration from 21-03-2014 onwards. In the

circumstances, the court considered that the petitioners have

not sufficiently explained the delay caused in filing the

application for restoration. It further appears that the court

had considered roznama of some other proceedings in court at

Sangamner produced by the respondents indicates that the

concerned advocate had lodged appearance in said

proceedings.

14. Learned judge then observed that adopting liberal

approach shall not tantamount to granting licence to file

restoration application beyond the period of limitation. The

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petitioners are required to show what prevented them from

filing application for restoration of appeal within time.

Sufficient cause is such a cause for which the petitioners

could not be blamed for their absence. He appears to have

appreciated sufficient cause to mean that applicant should not

act negligently or deliberately causing delay and thus

preventing the respondents from execution of the decree.

What appears to have weighed with the learned judge is,

absence had not only been on 11-03-2014 but also earlier

there had been non appearance of the advocate of petitioners

in the regular civil appeal. In the circumstances, the court

considered that the matter is being got deliberately delayed

by the petitioners and as such rejected their request.

15. Mr. Malte, learned counsel appearing on behalf of the

petitioners, submits that impugned order has been passed

pedantically without appreciating genuineness of the reasons

given in the application. Besides, according to him, one may

have to take into account that litigation initiated in 2004 had

been in respect of some transaction of 1964. Over and

above, he submits that while the petitioners had filed regular

civil appeal, it may not be necessary for them to attend the

appeal court day to day. Presence of the petitioners was not

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essential and necessary. In this particular case, advocate had

given an understanding to the petitioners that it is not

necessary for them to attend to each and every date in appeal

and their presence as and when required would accordingly

be informed by him to them. He further submits that no

advantage is being gained by the petitioners by causing delay

because it is, in fact, their own interest which is at peril under

the decree and they are seeking to protect the same by

setting up a challenge to the decree by filing appeal. He

further submits that apart from their contention in the

application that the matter can be deemed to be and given

treatment as an application for re-admission of appeal does

not appear to have received its due in the impugned order

passed by the appellate court. He submits that, medical

certificate which has been issued by the hospital to the

petitioners' advocate does not appear to have been disputed

as would appear from the observations in the order

impugned. As such, the case sought to be made out about

presence of petitioners' advocate somewhere else appears to

have been referred to in the impugned order shall not harm

and damage interest of the petitioners and merits of the case,

for, the appellate court has considered that there has been

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submission on behalf of the petitioners that for fault of the

lawyer, litigant should not suffer and yet, while passing

operative order, said consideration appears to have been

fallen in oblivion. Mr. Malte submits that the regular civil

appeal had been ready only in 2013 and only a few dates

have been missed out in the process to be attended to and in

the process if any inconvenience is caused to the respondents

because of the events and delay in filing application, the same

can be made good by awarding costs.

16. In support of his submissions, learned counsel Mr. Malte

has relied on quite a few decisions of the supreme court and

particularly has focused on the guidelines given in the case of

Collector, Land Acquisition, Anantnag vs. Mst. Katiji, reported in AIR

1987 SC 1353 and the one in the case of Esha Bhattacharjee vs.

Managing Committee of Reghunathpur Nafar Academy, reported in

(2013) 12 SCC 649 and lays emphasis on paragraphs no. 21 and

24 of the same reading thus:

21. From the aforesaid authorities the principles that can broadly be culled out are :

21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice.

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          21.2 (ii)      The terms ''sufficient cause'' should be understood in

their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4 (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6 (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

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          21.11 (xi)     It is to be borne in mind that no one gets away with

fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12 (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are :

22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4 (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of couse, within legal parameters.

23. Presently to the assertions made in the application for condonation of delay and the asseveration in oppugnation of the same. It may be stated here that the Division Bench while dealing with the application for condonation of delay has also adverted to the legal tenability of the interim order in a matter of appointment and approval of a teacher, and condoned the delay. It does not require Solomon's wisdom to perceive that the delay was colossal.

24. In the application for condonation of delay the appellant before the High Court had stated about the circumstances in which

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the order came to be passed by the learned Single Judge, the order in the earlier contempt petition and the second petition for contempt, the extinction of right of the respondent employee to continue in the post and thereafter proceeded to state the grounds for condonation of delay. We think it apposite to reproduce the grounds :

'' 14. That from the record it appears that the order impugned was communicated to the then Managing Committee including the headmaster in question and the said fact is totally unknown to the newly elected Managing Committee as they have been elected on 20-9-2009 and they have been handed over charge on 21-11-2009 and to the teacher in charge who has been handed over charge on 1-3-2010. It is pertinent to mention in this context that after having received the notice and the contempt application the applicants entrusted the learned advocate for taking appropriate steps and they have been advised to defend the case but due to miscommunication the applicant herein again handed over brief from Mr Banik, learned advocate to Mr Baidya, learned advocate. After having received the said papers and after perusing all the records he opined to prefer an appeal before the appeal court or to prefer an application for vacating the interim order and ultimately the same was filed on 7-6-2010 after several pursuance in spite of taking the application for vacating the interim order the court below day to day is proceeding with the contempt application.

15. Having got no other alternative applicant have been advised to prefer an appeal without certified copy and the leave has been prayed for and the same was allowed.

The photocopy of the receipt for application of xerox certified copy is annexed herewith and marked with letter 'A'.

16. That the delay occasioned in presenting the said mandamus appeal has taken place due to the aforesaid reasons which was beyond the control of the applicants and was completely unintentional. ''

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17. Learned counsel submits that having regard to aforesaid

guidelines particularly that entire gamut of facts has to be

taken into account. He, therefore, urges to indulge into the

request being made by petitioners.

18. Countering aforesaid submissions, Mr. Shirsath learned

counsel appearing for respondents no. 1-A to 1-D to 3,

submits that the reasons as have been given for condonation

of delay in fling restoration application can hardly be said to

be sufficient cause as would be required for delay

condonation. He submits that in the background of the

matter, quite a few dates matter was not being attended to

making it incumbent on the court to pass order of dismissal of

appeal. It is an indication of deliberation and intention on the

part of the petitioners and their advocate. Emptiness in

veracity of the reason of illness of the advocate in the wake of

his appearance in the court at Sangamner on 11-03-2014 the

date on which appeal was dismissed gets exposed. It is

rather intriguing that from March, 2014 to August, 2014 and

further after becoming aware in August 2014 to the date of

filing application in later half of September, 2014, no plausible

explanation is coming forth. This shows deliberate intention

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of the petitioners to delay the proceedings and harass

respondents and deprive them of enjoyment of fruits of

decree. He submits that, may be the matter is with regard to

immovable property and may be assuming it involves

substantial question of law, yet involvement of such question

would hardly be a cause for condonation of unexplained delay.

19. Mr. Shirsath relies on a decision of honourable single

judge of this court in the case of Pushpaben Dayashankar Pandya

vs. Jagannath Valji Kapadia, reported in 1987 Mh.L. J. 209,

focusing on paragraph 6 thereunder to lend credence to his

aforesaid submission. (Learned counsel Mr. Malte, however,

referring to paragraph no. 7 of said judgment points out that

even under those circumstances, the matter had been

remanded for re-decision.)

20. Learned counsel Mr. Shirsath further refers to a decision

rendered by honourable single judge of this court in civil

revision application no. 216 of 2014 [Nanasaheb Laxman

Jadhav and others vs. Dinkar Laxman Jadhav and others]

decided on 05-02-2015 whereunder request of the applicants

therein to condone delay had been rejected. According to

learned counsel facts in said case and the one in the present

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case are quite close. In cited case, delay of 114 days has

been refused to be condoned. He further refers to that the

petition for special leave to appeal against decision in said

civil revision application 216 of 2014 too had been dismissed.

21. Mr Shirsath further refers to guidelines of the supreme

court in the case of Esha Bhattacharjee (supra) as appearing in

clause 21.1 (i) onwards thereunder and submits that the

same holds good for the present case. Learned counsel,

therefore, submits that delay condonation applications are not

meant for consideration too widely and liberally and having

regard to the same, here in the present case there is

deliberate delay to defeat the respondents' right under the

decree.

22. Mr. Shirsath alternatively submits that in case the court

considers condonation of delay, appellate court may be

directed to proceed with appeal expeditiously and dispose of

the same preferably within a period six months.

23. Having heard learned counsel for the parties as above,

there does not appear to be any particular dispute over that

the litigants are not essentially and necessarily required to

attend to appellate proceedings on each and every date

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before the appellate court. Here, it has been submitted on

behalf of the petitioners that their advocate had given an

understanding to them that it is not necessary for them to

attend the appeal proceedings on every date and that they

would be informed if their presence is required. In the

circumstances, it appears that the regular civil appeal had

been pending since 2011 and it took a bit of time for getting

the appeal prepared and after it became ready for hearing,

petitioners' advocate had missed out a few dates as well the

date 11-03-2014 had not been attended to by him and

resultantly the matter had been dismissed in default on

11-03-2014. It appears that for quite a while petitioners

were not aware of such order having been passed. Said

submission on behalf of the petitioners appears to carry a lot

of force as there is no counter material produced indicating

that the petitioners had been personally aware of the date of

dismissal of appeal or at any time before August, 2014. Their

lawyer, if at all, had caused appearance in some proceedings

on the relevant date at some other place, he does not appear

to have informed the petitioners about the developments

taking place in the appeal and thus they cannot be blamed for

the same. Petitioners' interest in the appeal appears to have

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come in peril. In the events as those have occurred,

petitioners can hardly be said to have played any active role,

nor can it be said that they have gained any advantage in

getting their own matter dismissed in default although it is

being contended on behalf of the respondents that this was

with a view to delay the litigation and deprive them of the

fruits of decree. It may have to be taken into account, a

litigant may not gain benefit from causing delay deliberately.

In this particular case, decree had been running against

petitioners and they had challenged the same. The matter

was to be considered on merits. It does not appear to be a

case that the petitioners have gained any particular

advantage in causing delay. The fault of the lawyer, in the

circumstances, having regard to the observations by appellate

judge, can hardly be attributed to the petitioners. Learned

judge has, in fact, observed that sufficient cause would mean

the cause for which the petitioners could not be blamed for

their absence. In this matter, absence or non appearance of

the petitioners on 11-03-2014 can hardly be attributed to

them in the circumstances.

24. In aforesaid context, reference to paragraph no. 21 in

Esha Bhattacharjee's case (supra) would be useful. It has been

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observed in clause 21.6.(vi) of paragraph no. 21 that

adherence to strict proof should not affect public justice and

cause public mischief because the courts are required to be

vigilant so that in the ultimate eventuate there is no real

failure of justice and substantial justice being paramount,

technical considerations should not receive undue importance

as appearing under clause 21.3.(iii) of paragraph no 21. In

clause 21.8 (viii) of paragraph no. 21, it has been observed,

there is distinction between inordinate delay and a delay of

short period, for, to inordinate delay doctrine of prejudice is

attracted while to short duration it may not be attracted and

further that the first one warrants strict approach whereas the

second calls for a liberal delineation.

25. In present matter, having regard to that delay in filing

restoration application is of about 160-161 days, in the facts

and circumstances of the case, the same does not appear to

be inordinate, deliberate or intentional delay particularly

taking into account the background in which litigation has

emerged.

26. Taking over all view of the matter, it appears to be

expedient to give precedence to contest on merits having

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regard to facts and circumstances and the background rather

than getting bogged down by technicalities. Inconvenience

caused to other side can be compensated in terms of money.

The reasons under the application for condonation of delay do

not appear in the circumstances to be vacuous nor it can be

said that no credence can be given to those at all.

27. In the circumstances, writ petition stands allowed.

Delay of five months and nine days in filing application

seeking restoration of regular civil appeal no. 47 of 2011

stands condoned subject to payment of costs of Rs.20,000/-.

It has been given to understand that said amount is already

deposited and lying in this court under order dated

13-02-2015 passed in writ petition no. 1402 of 2015 among

the same parties. Said amount as such be remitted to the

appellate court for appropriation towards costs to be paid to

respondents - plaintiffs pursuant to aforesaid order in the

present writ petition. The plaintiffs as such be allowed to

withdraw said amount of Rs.20,000/- from the appellate

court. The appellate court to proceed with restoration

application as soon as possible and dispose of the same

within a period of sixty days from the date of receipt of writ of

this order. In case restoration application is allowed, the

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appellate court to proceed with the appeal expeditiously

thereafter and preferably dispose of the same within a further

period of five months. Parties graciously agree to appear

before the appellate court on 19-06-2017.

28. Rule made absolute in aforesaid terms. Writ petition

stands disposed of.

SUNIL P. DESHMUKH, JUDGE

pnd