Premchand Uttamchand Nahar vs Chandrakant Vishnu Kulkarni @ ...
2021 Latest Caselaw 3376 Bom

                                                                sa-517-2018 res.odt
                                         (1)


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                    SECOND APPEAL NO.517 OF 2018
                                 WITH
                  CIVIL APPLICATION NO.8440 OF 2018

 Premchand S/o Uttamchand Nahar
 Age- 52 years, Occu. Business,
 R/o. Chausala,
 Tq and District- Beed.                                 ...Appellant

                  Versus
 Chandrakant S/o Vishnu Kulkarni @ Khadke
 Age : 66 years, Occ. Agril & Service,
 R/o. Chausala,
 Tq and District- Beed.                                 ...Respondent
                                ...
 Mr. Pravin N. Kalani & Mr. M.G. Kochar, Advocate for the
 appellant.
 Mr. N.K. Tungar, Advocate for the respondent-sole.
                                ...

                                 CORAM : SMT. VIBHA KANKANWADI, J.

RESERVED ON : 30th JANUARY, 2021 PRONOUNCED ON : 23rd FEBRUARY, 2021

ORDER:-

. Present appeal has been fled under Section 100 of

the Code of Civil Procedure by the original defendant. Present

respondent is the original plaintif who had fled Regular Civil

Suit No. 290 of 2010 for possession and mesne proft. It was

decided by the learned 4th Joint Civil Judge, Junior Division,

Beed on 30.11.2015. The said suit came to be decreed. The

present appellant intended to fle appeal before the District

Court, Beed, however, there was delay of 6 months and 10

days. Therefore, he fled application under Section 5 of

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Limitation Act bearing Misc. Civil Application No.104 of 2016.

The learned Adhoc District Judge-2, Beed rejected the said

application on 20.03.2018 thereby the delay was not condoned

and therefore, present second appeal has been fled.

2. Heard learned Advocate Mr. Pravin N. Kalani and

Advocate Mr. M.G. Kochar for the appellant and learned

Advocate Mr. N.K. Tungar for the respondent.

3. It has been vehemently submitted on behalf of the

appellant that the learned First Appellate court failed to

consider the basic principles, which are required to be

considered while dealing with an application for condonation of

delay. The application should be considered liberally is the

legal principle. The appellant had submitted that the suit was

initially fled against the father of the appellant who had

engaged an Advocate, however, father of the appellant died

during the pendency of the suit and the appellant appeared in

that matter as legal representative. The appellant could not

remain present at the time of evidence, as there was no

contact between his Advocate and him. The appellant is the

businessman and except the said business, he has no other

source of income. After death of his father, the fnancial

condition of the appellant has gone down. The Advocate of the

appellant had withdrawn his vakalatnama and therefore, he

could not make the defence. No information was given by the

Advocate about the withdrawal of vakalatnama. The appellant

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could not engage another Advocate of his choice for defending

the suit. Therefore, the further proceedings in the suit took

place in absence of the defendant. He could not even cross-

examine the witnesses of the plaintif. He came to know about

the decision of the suit after he received notice on 15.05.2016

regarding execution petition i.e R.D. No.30 of 2016, in which

the plaintif had prayed for possession of 2 gunthas of land.

Then notice was also received by him of the proceedings

before the 4th Joint Civil Judge, Junior Division, Beed of M.C.A.

No.183 of 2016, which was fled for computation of mesne

profts. Thereafter, he collected the certifed copies of the

judgment and other documents. The said delay of 6 months

and 10 days was beyond the capacity and it was unintentional.

He had no proper opportunity to defend the suit and therefore,

the learned First Appellate Court ought to have considered the

reason for the delay and ought to have taken proper approach.

It is further submitted on behalf of the appellant that after the

learned Advocate for the defendant had given no instructions

pursis, the concerned Court ought to have given notice to him

to make arrangement for engaging Advocate of his choice.

Reliance has been placed on the decision of this Court at

Principal Seat in "Dattusing Giridharsing Rajput (Thakur)

Vs. Bhagwant Devasthan and Others, 2005(2) Bom.C.R.

290", wherein it has been observed that the Advocate does

not get discharged by merely fling a 'no instructions pursis'.

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Condition precedent for grant of leave to withdraw appearance

by Advocate is that written intimation of his intention to do so

has to be served on client atleast 7 days in advance, unless

client himself instructs in writing to Advocate to withdraw his

appearance. Further it is observed in the decision "it appears

trial Court proceeded on erroneous assumption that fling of

said pursis will operate as discharge of Advocate and therefore,

an observation has been made in order that Advocate has

retired. Approach of learned trial Judge in proceeding with

hearing of Regular Civil Suit was wholly erroneous and contrary

to the express provision of Section 10 of Code". Further

reliance has been placed on the decision in "Malkiat Singh

Vs. Joginder Singh, 1998(2) SCC 206" , wherein it has been

observed that "A perusal of the record also results that the

appellant were neither careless nor negligent in defending the

suit. They had engaged a counsel and were following the

proceedings. In this situation, the trial Court, which had

admittedly not issued any notice to the appellants after their

counsel had reported to instructions, should have, in the

interest of justice, allowed that application and proceeded in

the case from the stage when the counsel reported no

instructions". The learned Advocate for the appellant

therefore, submitted that the second appeal gives grounds for

substantial questions of law and the impugned order passed by

the Adhoc District Judge, is required to be set aside and the

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appellant deserves to be heard in the frst appeal by the First

Appellate Court.

4. Per contra, the learned Advocate for the respondent

strongly submitted that the facts and decisions in this case do

not give rise to any substantial question of law. Opportunity

was given to the present appellant by the learned Adhoc

Additional Sessions Judge to lead evidence to explain the delay.

He had fled afdavit in support of his application. He has been

cross-examined by the plaintif. He has specifcally stated that

he had received notice given by his Advocate, which was sent

after it was noticed that he was not remaining present.

Thereafter, he has admitted that he was present at the time of

measurement of the land and had signed on the panchnama.

When he had the knowledge of pendency of the suit, still he

did not remain present, he has to be blamed for not responding

immediately. He has not examined his advocate in support of

his application. Even the present respondent had entered the

witness box and resisted the delay condonation application.

Nothing contrary has been extracted, therefore, proper

opportunity was given to the present appellant to defend, yet,

he has not taken appropriate steps. It cannot be stated that

now, those facts are giving rise to any substantial question of

law.

5. At the outset, it is to be noted that the said suit i.e.

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R.C.S. No.290 of 2010 was fled against the father of the

present appellant. It appears that somewhere in the year

2013, the original defendant expired. Thereafter, present

appellant was brought on record as the legal heir of the

original defendant, but then he has not fled any additional

written statement. Further copies of the record have been

produced along with the afdavit-in-reply by the respondent,

which show that the vakalatnama on behalf of the present

appellant was fled by Advocate on 20.04.2013. Thereafter, a

pursis is also fled for continuation of vakalatnama on

07.02.2014. An application was fled in the suit at Exhibit-36

by the Advocate representing the applicant for adjourning the

matter for taking cross of the witness for the plaintif. It was

also stated that since the applicant is not responding, he want

to issue no instructions pursis and for that purpose, time is

required for issuing notice. That application came to be

rejected by learned trial Judge on 07.03.2015, however, one

more application was given below Exhibit-40 stating that notice

is required to be issued to the client intending to communicate

no instructions and therefore, again on the same count,

adjournment was asked on 06.04.2015. That application was

allowed as last chance. Now to support the application for

delay, the present appellant had entered the witness box and

gave his afdavit-in-chief. The afdavit-in-chief is nothing but

reproduction of his application. Though, in the application he

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intended to say that he has not received any notice from his

Advocate, he changed the version in his afdavit-in-reply and

stated that he came to know belatedly that his Advocate has

withdrawn the vakalatnama. In his cross-examination, he has

admitted that he has received notice issued by his Advocate

dated 15.04.2015, which was given on account that he was not

remaining present in the case. Now, what else is required

again, is a question. The procedure has been followed by the

concerned Advocate before passing no instructions pursis. He

had given notice to his client. In-spite of receiving the same, if

the defendant had preferred not to appear and engage another

Advocate, he should thank himself. It is further to be noted

that after notice was issued on 15.04.2015, it would have been

received by appellant-original defendant in due course, still it

appears that the trial Court waited and ultimately the

judgment has been pronounced on 30.11.2015. The defendant

could have appeared during the said period of 6 to 7 months

and further proceedings could have been taken up. It is also to

be noted from the judgment of the learned lower Court that,

measurement had taken place prior to the suit and after it was

transpired that the defendant has committed encroachment to

the extent of 2 gunthas, plaintif had issued notice to the

defendant i.e. original defendant on 31.01.2010 and asked him

to hand over the encroached portion. It was the contention of

the plaintif that the said notice was received by the original

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defendant on 17.02.2010. The appellant in his cross-

examination in the delay condonation application has admitted

that he was present when the measurement had taken place

and had signed on the panchnama. Thus, it can be seen that

he had every knowledge about the pendency of the suit, the

nature of litigation and the relief which the plaintif is claiming,

still it appears that he preferred to remain careless.

6. The learned Advocate for the appellant has relied

upon the above said decisions. At the outset, it can be said

that the facts in both the cases are diferent. In 'Dattusing

Giridharsing Rajput (Thakur)' (Supra), in fact, it was the

subsequent suit which was stayed till the disposal of prior suit

between the same parties. In that subsequent suit, pursis was

fled by the Advocate stating that, since his client was not

present and had not given instructions, he will not be able to

conduct the matter. That pursis was taken by the learned trial

Judge into consideration and further proceedings had taken

place, which were not approved by this Court. It appears that

in 'Dattusing Giridharsing Rajput (Thakur)' (Supra), no notice

was issued by the concerned Advocate, however, in present

case, notice was issued and it has been received by the

present appellant. Same is the case with 'Malkiat Singh'

(Supra). The facts of the case disclose that the claim in the

suit was contested by the appellants. They had fled their

written statement and engaged a counsel to defend the suit.

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Even the cross-examination of two witnesses examined on

behalf of the plaintifs was done by the Advocate representing

the defendants, but thereafter, the learned Advocate engaged

by the defendants pleaded no instructions before the Court on

18.11.1991 and thereafter, the trial Court proceeded ex-parte.

In that case also, no notice was issued by the concerned

Advocate to the client. The observations in Para-6 of the said

judgment are required to be noted for the diference in the

facts. They are "The counsel for the appellants pleaded 'no

instructions' but the court did not issue any notice to the

appellants, who were admittedly not present on the date when

their counsel reported no instructions in the court. It is

nobodys case that the counsel informed them after he had

reported no instructions in the court". Thus, the way learned

Advocate for the appellant intends to convey that even after

the Advocate has given notice of fling of no instructions pursis,

the trial Court should issue notice to the defendant is the

procedure that is contemplated; appears to be not the

directions given in the said case of 'Malkiat Singh'. The

Advocate representing the present appellant before the

learned trial Judge had done his duty and therefore, it cannot

be said that once again the trial Court was supposed to issue

any notice to the appellant and giving one more chance to him

to engage the Advocate of his choice.

7. It can be seen that the applicant has suppressed

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the facts and has not come with bonafde intention. Though his

advocate had issued notice to him and thereby conveyed the

his intention to withdraw his Vakalatnama, yet now the

appellant submits that Court ought to have issued notice to

him. Court will not come to the rescue of those persons who

intentionally remain negligent. No substantial question of law

is arising in this case. There is no error committed by the

learned First Appellate Court in rejecting the application for

condonation of delay. No doubt, it is well settled law that

application for condonation of delay should be considered

liberally, however, that would come into picture only when the

applicant/appellant shows reasonable and sufcient ground to

condone the delay. That prerequisite cannot be given a go

bye. The application for condonation of delay appears to be

not fled with bonafde intention and therefore, the learned First

Appellate Court was justifed in rejecting the application.

8. At the cost of repetition, when this Court has come

to the conclusion that no substantial question of law as

contemplated under Section 100 of the Code of Civil Procedure

has been shown by the appellant, second appeal deserves to

be rejected and accordingly, it is rejected. Pending civil

application stands disposed of.

9. Learned Advocate for the appellant, after the

pronouncement of the judgment, submits that protection be

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granted for about four weeks, as he intends to approach the

Hon'ble Apex Court.

10. Learned Advocate Mr. Tungar appearing for the

respondent strongly opposes.

11. Since the protection was granted by this Court till

today i.e. till the decision of the second appeal, it can be

continued for further period of four weeks in order to enable

the appellant to approach the higher Court and, therefore, the

decree passed by the Lower Courts is stayed for a further

period of four weeks from today.

(SMT. VIBHA KANKANWADI, J.)

Mujaheed//