Pradeep S/O Motiram Shende vs Tejram S/O Yadavrao Urade
2017 Latest Caselaw 6597 Bom

        J-cra102.17.odt                                                                                                    1/5 


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


                        CIVIL REVISION APPLIATION No.102 OF 2017


        Pradeep s/o. Motiram Shende,
        Aged about 40 years,
        Occupation : Business, R/o. Somalwada,
        Wardha Road, Nagpur.                                                         :      APPLICANT/
                                                                                            PETITIONER

                           ...VERSUS...

        Smt. Tejram s/o. Yadavrao Urade,
        Aged Major, Occupation : Business,
        R/o. Shaniwari Ward, Ramtek,
        Tah. Ramtek, District Nagpur.                                                 :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri P.P. Kothari, Advocate for the Applicant/Petitioner.
        Shri N.B. Kalwaghe, Advocate for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 29 AUGUST, 2017.

ORAL JUDGMENT :

1. Heard Shri P.P. Kothari, learned counsel for the applicant

and Shri N.B. Kalwaghe, learned counsel for the respondent finally by

consent.

2. The only question, this revision application raises is :

Whether the impugned order is perverse and arbitrary in law ?

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3. Upon hearing both sides and going through the paper book

of this application including the impugned order, I am of the opinion that

the answer to the question has to be given as in the affirmative.

4. In the application filed before the lower Appellate Court, the

respondent had given only two reasons, namely, i) there were financial

problems faced by the respondent which disabled him from contacting

his advocate, and ii) he resided in remote area where there were no

possibility and no facility to contact his lawyer on phone; still the

respondent somehow or the other, got the knowledge of the judgment

and order, against which he intended to file an appeal.

5. In the reply filed by the applicant, these grounds were

strongly denied stating that they were not true. It was also submitted in

a specific manner that the appeal was filed in February 2016 and

whereas, the respondent had appeared in the execution proceeding filed

to enforce the decree well before filing of the appeal. It was also

attempted to be informed to the lower Appellate Court through this reply

that the respondent had appeared before the executing Court in the

month of September 2015.

6. In this backdrop, the lower Appellate Court allowed the

application giving reasons that the respondent did show sufficient cause

for condoning the delay and that the expression "sufficient cause"

employed by the Legislature, as held in the case of Collector, Land

Acquisition, Anantnag and others vs. Ms. Katiji and others, reported

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in (1987) 2 SCC 107 was adequately elastic to enable the Court to apply

law in a meaningful manner so as to subserve the ends of justice. The

lower Appellate Court also reasoned that in a present case like this, a

liberal approach was required to be adopted and that the Court must do

everything to shun hyper technical approach.

7. While, there can be no dispute about the principles of law

stated in the case of Collector, Land Acquisition, Anantnag and others

(supra), the application of these principles in a present case like this

could not have been there, for the reason that basically, some cause in

order that it is interpreted as a sufficient cause has to be shown by the

seeker of the discretion of the Court to condone the delay occurred in

filing of an appeal. The Court has also to take a precaution that no

falsehood is put forward as a reason for condoning the delay. The Court

has also to be conscious of the fact that the party concerned acted all the

while with some or due diligence and did not allow rights the decree

conferred upon other side to settle. In the instant case, as stated earlier,

there were only two reasons, one of financial problem and the other of

the residence of the respondent in a "remote area" devoid of adequate

facilities and proper possibilities to contact Advocate on phone.

Curiously enough, the respondent did not file an appeal, as rightly

submitted by the learned counsel for the appellant, in the capacity as a

pauper nor did he seek his declaration to be an indigent person. The

respondent also did not explain his status in life. He only submitted that

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he was professing a private occupation. Obviously, the respondent does

not proclaim himself to be a labourer and declares himself to a person,

who pursues some private occupation. What kind of that private

occupation is, one does not know, as the respondent maintains a

complete silence on this aspect of the matter. Then, Ramtek is one of the

oldest tahsil places of Nagpur and has a substantial population, which by

any estimate, runs into lacks and not in thousands. One need not say

anything or make any comment about such a residential place, being

claimed to be a remote area and not an urban area, having no

communication facilities. So, the explanation given by the appellant in

the application itself did not show any cause and, therefore, there could

not have been any occasion for the lower Appellate Court to embark

upon an inquiry to find out if it was a sufficient cause or otherwise.

8. Coming to the aspect of bona fides or malafides, the lower

Appellate Court, I must say, has not dealt with it in any manner. The

delay condonation application is silent about the appearance of the

respondent in September 2015 before the executing Court. Without any

dispute, the delay condonation application has been filed in February

2016 along with a memo of appeal. The reply filed by the applicant

pointed out the fact of appearance of the respondent in September 2015

before the executing Court. The respondent on his part, also did not say

before that Court anything about such an averment in the reply. Now, I

must say, there remains no dispute about respondent's appearance in

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September 2015 before executing Court. In these circumstance, there

was a duty in the respondent to have mentioned in his application his

appearance before the executing Court in September 2015 and also give

his explanation for his not filing the appeal immediately after September

2015. But, he did not discharge it. The Lower Appellate Court ignored

these fundamental aspects of the issue involved in this case. The issue is

about acting in a bona fide manner. Can one say, on the backdrop of the

silence maintained by the respondent, that the respondent acted in a

bona fide way ? One need not give any express answer to the question

as the facts discussed earlier amply provide it. It is obvious that there

was also absence of bona fides on the part of the respondent.

9. In the result, I find that the impugned order is perverse and

arbitrary in law. It cannot be sustained in law.

10. The civil revision application is allowed.

11. The impugned order is quashed and set aside. As a

consequence, the delay condonation application stands rejected. No

costs.

JUDGE okMksns