Bombay High Court
Sk. Ibrahim S/O Sk. Rasool vs Mohommad Zahir S/O Mohammad ... on 4 September, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 157 OF 2017
Sk. Ibrahim s/o Sk. Rasool
Aged about 60 years, Occ: Labourer
R/o Khadakpura, Barshitakli
Taluka Barshitakli, District Akola. .......APPELLANT
...V E R S U S...
1] Mohommamd Zahir s/o Mohammad Sharif
Aged about 44 years, Occ.: Carpenter
R/o Khadakpura, Barshitakli
Taluka Barshitakali, District Akola.
2] Syed Nabi s/o Abdul Sattar
Aged about 35 years, Occ.: Carpenter
R/o Zirabawadi (Khadan) Akola,
Tq. & Distt. Akola. .......RESPONDENTS
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Shri A. M. Tirukh, Advocate for Appellant.
Shri A. J. Jamadar, Advocate for Respondent no.1.
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CORAM : A. S. CHANDURKAR, J.
DATE : 4th September, 2017
Oral Judgment :
Admit on the following substantial question of law:
Whether the lower Appellate Court has committed an error in
dismissing the application for condonation of 142 days' delay caused
in filing an appeal?
2] The respondent no.1 is the original plaintiff who had filed suit for
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recovery of possession of plot No. 1402 from the defendants. The trial Court
decreed the suit on 8.3.2010. The defendant no.1 filed an appeal on
6.9.2010 along with an application for condonation of delay. This
application was opposed by the original plaintiff. The appellate Court by
order dated 18.10.2014 refused to condone the delay. Hence, the present
Second Appeal.
3] Shri A. J. Jamadar, learned counsel for the respondents raised a
preliminary objection to the maintainability of the Second Appeal. It was
submitted that by refusing to condone the delay there was no decree passed
by the first Appellate Court and what was rejected was only the application
for condonation of delay. He referred to the decision in Writ Petition No.
2729 of 2012 (Shahurao s/o Sitaram Bhalerao & ors. Vs. Vishwanath s/o
Rama Jadhav through LRs & ors.) decided at the Aurangabad Bench in
which it was held that an order refusing to condone delay for readmission of
the appeal was not a decree.
Shri A. M. Tirukh, learned counsel for the appellant submitted
that in view of the judgment of the Hon'ble Supreme Court in Shyam
Sundar Sarma Vs. Pannalal Jaiswal and Ors., (2005) 1 Supreme Court
Cases 436, the appeal was maintainable for challenging the order passed by
the First Appellate Court refusing to condone delay.
4] The question whether a second appeal lies for challenging an
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order refusing to condone delay in filing the first appeal stands answered by
the decision of the Hon'ble Supreme Court in the aforesaid decision. It has
been held in clear terms that an order refusing to condone delay in filing the
appeal is an order passed in the appeal and same can be challenged by filing
of Second Appeal.
5] The decision relied upon by the learned counsel for respondent
no.1 in Writ Petition No. 2729 of 2012 is with regard to the delay in filing
restoration of the appeal not being condoned. After noticing the judgment of
the Hon'ble Supreme Court, it has been held that there was a distinction
between an order refusing to condone the delay in filing an appeal and an
order refusing to condone delay in seeking re-admission of the appeal.
In view of aforesaid, the appeal is held to be maintainable.
Consequently, the preliminary objection cannot be sustained.
6] On behalf of the appellant it was submitted that considering the
age of the appellant and the reasons assigned, the delay was liable to be
condoned. The learned counsel for the respondent no.1 supported the
impugned order and submitted that the appellant did not give sufficient
explanation for condoning the delay.
7] Before the first Appellate Court, the appellant filed an application
under Section 5 of the Limitation Act, 1963. It was stated that the appellant
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being an old aged person and suffering from ill-health, he could not prefer
the appeal within stipulated time. On that count, the delay was sought to be
condoned. This application was opposed and the appellate Court by the
impugned order refused to condone the delay.
8] Considering the age of the appellant and the fact that he had
stated that on account of ill-health the appeal could not be preferred within
a period of limitation, I find that one opportunity for contesting the
proceeding on merits deserves to be granted. It is to be noted that the
original plaintiff had filed two suits for possession. Both the suits were
decreed. The appeal challenging the decree in Reg.Civil Suit No. 33/2007 is
still pending before the appellate Court. I find that by compensating the
respondent no.1, the delay can be duly condoned.
9] In view of aforesaid, the substantial question of law as framed is
answered by holding that the first Appellate Court ought to have condoned
the delay. Accordingly, the order dated 18.10.2014 in M.J.C. No. 113/2010
is set aside.
The delay in filing the appeal is condoned subject to costs of
Rs.5,000/- being paid by the appellant to the respondent no.1 within a
period of four weeks from today. Such costs shall be paid before the first
Appellate Court. The parties shall appear before the said Court on 18.9.2017.
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If costs are so paid, the appeal shall be entertained on merits.
Appeal is allowed in aforesaid terms. There would be no order as
to costs.
JUDGE
rgingole
