Kamalkishore S/O Ramnath Sharma vs Shri Sudhanshu S/O Manoranjan ...
2017 Latest Caselaw 8315 Bom

Judgment

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                                           1

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

                    SECOND APPEAL NO.507 OF 2017

Kamalkishore s/o Ramnath Sharma,
Proprietor of Digitronics Equipment
& Consultant Engineers,
Aged about 57 years, Occupation : Business,
R/o 176, New Colony, Nagpur (M.S.).                 ..... Appellant.

                                  ::   VERSUS   ::

Shri Sudhanshu s/o Manoranjan Biswas,
Proprietor of M/s. Central Switchgear,
Aged about 60 years,
Occupation : Business, R/o Plot No.156/2,
MIDC, Hingna, Nagpur (M.S.).             ..... Respondent.

================================================================
           Shri A.Shelat, Counsel for the appellant.
           Shri S.M. Prasad, Counsel for the respondent.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    :  NOVEMBER 1, 2017.

ORAL JUDGMENT

1. Heard learned counsel Shri A. Shelat for the appellant

and learned counsel Shri S.M. Prasad for the respondent, in extenso.

2. On 6.9.2017, notice of final disposal of the appeal was

.....2/-

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given. After hearing both learned counsel for the parties, following

substantial question of law falls for consideration of this Court:

"Whether the First Appellate Court was legally justified in refusing to condone delay in filing the appeal under Section 96 of the Code of Civil Procedure, 1908?"

3. By consent of learned counsel for the parties and as per

order dated 6.9.2017, the appeal is taken up for its final hearing for

considering the above substantial question of law.

4. The facts giving rise to present appeal in a nut shell are

as under:

The respondent is the original plaintiff. He filed a suit for

recovery of amount of Rs.4,89,005/-. In the said suit, on being

summoned, the present appellant appeared and filed his written

statement and contested the claim of the plaintiff. After filing of the

written statement, it appears that the appellant/defendant chose not to

remain present before the Trial Court. Consequently, on 29.2.2016

learned Joint Civil Judge Junior Division, Hingna, District Nagpur

.....3/-

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granted the decree in favour of the respondent/plaintiff along with

interest @ 18% per annum.

5. The respondent/plaintiff put the said decree for execution

by filing Regular Darkhast No.11 of 2016 before the executing Court.

The notice of the said execution proceedings was served upon the

appellant/defendant. In pursuance to the said, he appeared in the

executing Court on 5.11.2016. Thereafter, he filed an appeal under

Section 96 of the Code of Civil Procedure, thereby challenged the

judgment and decree passed by learned Trial Judge in favour of the

respondent/plaintiff. Since the appeal was barred by limitation, an

application for condonation of delay was filed.

6. An application for condonation of delay for filing the

appeal was registered as Misc. Civil Application No.73 of 2017. The

said application was contested by the respondent/plaintiff decree

holder and learned District Judge-8, Nagpur on 4.7.2017 rejected the

application. Consequently, the registration of the first appeal filed on

behalf of the appellant was refused. That gives rise to the present

.....4/-

Judgment

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second appeal.

7. After hearing learned counsel for the appellant and

learned counsel for the respondent, it is clear that after filing of the

written statement, the appellant did not attend the Trial Court. The

reasons are put forth by the appellant in the application for

condonation of delay that he could not appear before the Trial Court

because of the wrong advice given to him by his previous Advocate. I

am afraid that such excuses can be put forth by the litigants. It is very

easy for a litigant to make allegations against his previous Advocate in

the subsequent proceeding in order to garner sympathy from the

Appellate Court. Such a practice adopted by litigant needs to be

deprecated. However, it is clear that the case of the appellant was not

tested on its own merits because of his failure to remain present in the

Court below.

8. Every litigant has a right to get his case or cause decided

on its own merits. Normally, the Court should not adopt a technical

view to non-suit the suiter on the technical grounds.

.....5/-

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9. It is not the case of the respondent/plaintiff that the

reasons given by the applicant at least to the extent that there was a

financial constraint on the part of the appellant or the family members

were not keeping good health are mala fide. Thus, it is clear that to

that extent the application filed for condonation of delay ought to have

been considered sympathetically by learned Lower Appellate Court.

10. Therefore, I am of the view that the substantial question

of law has to be answered in negative and the order of the Appellate

Court rejecting the application for condonation of delay has to be set

aside. However, the respondent who is the decree holder cannot be

left in lurch. Therefore, the present appeal is allowed on the following

conditions:

ORDER

i) The appellant to deposit Rs.4,89,005/- before the Lower

Appellate Court on or before 15.12.2017 positively.

ii) On such deposit of the aforesaid decreetal amount, the

.....6/-

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application for condonation of delay is allowed by setting

aside the order rejecting the same and the Lower

Appellate Court should register the appeal filed on behalf

of the appellant challenging judgment and decree passed

by learned Joint Civil Judge Junior Division, Hingna,

District Nagpur in RCS No.112 of 2012 (Old Special Civil

Suit No.584 of 2005) dated 29.2.2016.

iii) If the aforesaid amount is not deposited on or before

15.12.2017, as directed above before the Appellate Court,

the Appellate Court should not register the appeal. Not

only that, order dated 4.7.2017 passed by learned District

Judge-8, Nagpur below Exhibit-1 in Misc. Civil

Application No.73 of 2017 shall stand revived.

iv) If the amount is deposited before the Appellate Court,

the Appellate Court is directed to invest the said amount

with any Nationalized Bank initially for a period of one

year and shall continue to re-invest the same, if occasion

.....7/-

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arises, in order to save the interest.

v) The parties are directed to appear on or before the

Appellate Court on 18.12.2017. The appellate Court shall

decide the appeal on its own merits in accordance with

law.

vi) After decision of the appeal on its own merits, the

succeeding party shall be entitled to withdraw the said

decreetal amount along with interest accrued thereon.

vii) With these conditions, the appeal is allowed.

However, there shall be no order as to costs.

JUDGE

!! BRW !!

...../-