Bombay High Court
Shri Narayan Dhondbaji Deshmukh vs Shri Ranjitsingh S/O Dadusingh on 29 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 268
/2018
Shri Narayan Dhondbaji Deshmukh,
aged about 43 Yrs., Occu. Labour,
R/o House No.595/24, Bharat
Nagar, Nagpur. ..Petitioner.
..Vs..
Shri Ranjitsingh S/o Dadusingh Suryawanshi,
aged about 72 Yrs., Occu. Business, R/o Near
Vijay Manglekar Jwellers, Hansapuri, Bhandara
Road, Nagpur. ..Respondent.
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Shri V.U. Waghmare, Advocate for the petitioner.
Shri S.S. Sitani, Advocate for the respondent.
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CORAM : Z.A. HAQ, J.
DATE : 29.1.2018.
ORAL JUDGMENT
1. Heard Shri V.U. Waghmare, Advocate for the petitioner and Shri
S.S. Sitani, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
3. The respondent had filed civil suit praying for decree for eviction,
possession and other ancillary reliefs. This civil suit is decreed by the
judgment delivered on 16th November, 2016. The judgment was passed ex
parte. The petitioner filed an application under Order IX Rule 13 of the Code
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of Civil Procedure praying that the ex parte judgment and decree be set aside.
This application was filed within prescribed period of limitation. As the
application under Order IX Rule 13 of the Code of Civil Procedure was filed by
the petitioner without complying with the requirements of Section 17 of the
Provincial Small Cause Courts Act, 1887 the respondent filed an objection
before the trial Court opposing the maintainability of application under Order
IX Rule 13 of the Code of Civil Procedure filed by the petitioner. This objection
filed by the respondent was rejected by the trial Court by order dated 13th April,
2017. The respondent had challenged the order dated 13 th April, 2017 before
this Court in Civil Revision Application No.84/2017. This civil revision
application was allowed by the judgment dated 2 nd November, 2017. This
Court held that as the application under Order IX Rule 13 of the Code of Civil
Procedure was filed by the petitioner without complying with the mandate of
Section 17(1) of the Provincial Small Cause Courts Act, 1887 it was not
maintainable. Accordingly, the application filed by the petitioner under Order
IX Rule 13 of the Code of Civil Procedure was dismissed for non-compliance of
provisions of Section 17(1) of the Provincial Small Cause Courts Act, 1887.
4. After dismissal of the application filed under Order IX Rule 13 of the
Code of Civil Procedure, the petitioner filed appeal before District Court to
challenge the judgment and decree passed in Regular Civil Suit No.113/2016.
As there was delay of about 378 days in filing the appeal, the petitioner filed an
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application praying for condonation of delay. The petitioner resorted to the
provisions of Section 14(2) of the Limitation Act contending that as he was
prosecuting his remedy under Order IX Rule 13 of the Code of Civil Procedure
and those proceedings were dismissed on technical grounds, he is entitled to
seek condonation of delay of that period. The learned District Judge has
dismissed the application filed by the petitioner praying for condonation of
delay. The petitioner being aggrieved by this order, has filed this writ petition.
5. The learned Advocate for the respondent has submitted that the
petitioner is not entitled for the benefit of Section 14(2) of the Limitation Act
as he has already availed remedy under Order IX Rule 13 of the Code of Civil
Procedure and having failed in those proceedings, now he cannot be permitted
to file appeal. It is submitted that the application filed by the petitioner under
Order IX Rule 13 of the Code of Civil Procedure was maintainable before the
trial Court and it cannot be said that this application under Order IX Rule 13 of
the Code of Civil Procedure was dismissed for want of jurisdiction. To support
the argument, reliance is placed on the judgment given in the case of
Nandkishor Kanhyalal Agrawal V/s. Dhule Municipal Corporation and Ors.
reported in 2012 (1) Mh.L.J. at page 918.
6. Section 14(2) of the Limitation Act enables a party to seek exclusion
of period for which that party has been prosecuting some other proceedings in
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good faith in a Court which had no jurisdiction or that Court refuses to
entertain those proceedings for a cause of like nature. In the present case,
though it cannot be said that the application filed by the petitioner under Order
IX Rule 13 of the Code of Civil Procedure was not maintainable, and the Court
before which that application was filed was having jurisdiction, fact remains
that the application, filed by the petitioner under Order IX Rule 13 of the Code
of Civil Procedure, was dismissed for non-compliance of Section 17(1) of the
Provincial Small Cause Courts Act, 1887. The dismissal of application filed by
the petitioner under Order IX Rule 13 of the Code of Civil Procedure was on
technical ground and it cannot prevent the petitioner from exercising the right
of appeal.
7. The learned District Judge has committed an error by refusing to
condone the delay on the ground that the application filed by the petitioner
under Order IX Rule 13 of the Code of Civil Procedure was maintainable before
the trial Court, overlooking the fact that the application is dismissed on
technical ground and not on merits. I find that the learned District Judge has
failed to exercise the jurisdiction vested in him.
8. The Advocate for the petitioner, on instructions, states that the
petitioner will deposit the occupation charges at the rate of Rs.2,000/-
(Rs. Two Thousand) per month before the District Court within one month.
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9. In view of the above, the following order is passed:
(i) The impugned order is set aside.
(ii) The delay in filing the appeal before the District Court is condoned.
(iii) The appeal filed by the appellant be registered and considered on
merits according to law.
The writ petition is allowed accordingly. In the circumstances, the
parties to bear their own costs.
JUDGE
Tambaskar.
