Sumanbai Alils Rukhmanbai ... vs Rauf Beg Ismail Beg
2022 Latest Caselaw 1228 Bom

                                                                           905.CA.3162.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                        SECOND APPEAL (ST) NO.12677 OF 2020

                                           WITH

                          CIVIL APPLICATION NO.3162 OF 2021
                                 IN SAST/12677/2020

1.       Sumanbai @ Rukhmanbai w/o Kacharu Jadhav,
         Age : 82 years, Occu: Household,
         R/o. Sulibhajan, Tq. Khultabad,
         Dist. Aurangabad.
2.       Gautam s/o. Vitthal Bankar,
         Age : 67 years, Occu: Labour
         Sonkheda, Tq. Khultabad,
         Dist. Aurangabad.
3.       Babasaheb s/o. Kacharu Jadhav,
         Age : 46 years, Occu: Labour,
         R/o. Sulibhajan, Tq. Khultabad,
         Dist. Aurangabad.
4.       Sunita Prakash Devkar,
         Age : 50 years, Occu: Labour,
         R/o. Sulibhajan, Tq. Khultabad,
         Dist. Aurangabad.
5.       Ratan s/o. Kacharu Jadhav,
         Age : 44 years, Occu: Tailor,
         All R/o. Sulibhajan, Tq. Khultabad,
         Dist. Aurangabad.                                     ... APPELLANTS
                                                                (Orig. Defendants)
                 VERSUS

         Rauf Beg s/o. Ismail Beg,
         Age: 40 years, Occu: Business,
         R/o. Kamal Mohalla, Lalbag, Khultabad,
         Tq. Khultabad, Dist. Aurangabad.                      ... RESPONDENT
                                                                (Orig. Plaintiff)
                               ...
Advocate for Applicants : Mrs. Janabai S. Aute
Advocate for Respondent : Mr. S.S. Shaikh
                               ...
                            CORAM       :   MANGESH S. PATIL, J.

                                    DATE      :   03.02.2022







                                                                              905.CA.3162.21.odt


PER COURT :

For the reasons stated in the Civil Application No.3162/2021

seeking to condone the delay of 201 days in filing the Second Appeal, civil

application is allowed. Delay is condoned.

2. At the joint request of both the sides I have heard them finally

on the following substantial questions of law :

• Whether the lower appellate court was justified in refusing to

condone the delay of more than three years in preferring the

appeal by the appellant challenging the judgment and decree

passed by the trial court, by refusing to take cognizance of the

fact that she had made an attempt to challenge the judgment and

decree by filing a separate suit bearing RCS No.5/2018

overlooking Section 14 of the Limitation Act ?

• Whether the lower appellate court was legally justified in refusing

to condone of delay by referring to the supervening events,

wherein, the respondent plaintiff had succeeded in the execution

proceeding and recovered possession of the suit property by

demolishing the appellant's dwelling house ?

3. It is a matter of record that initially the respondent had filed the

suit seeking perpetual injunction against the appellant. He had succeeded in

obtaining a decree. Subsequently, he filed the present suit alleging about

the appellant having encroached over his property to the extent of 15x20

sq.ft. It is also a matter of record that the suit for removal of encroachment

905.CA.3162.21.odt

was decreed and in execution thereof the dwelling house of the appellants

has been demolished delivering its vacant possession to the respondent

plaintiff. It is equally a matter of record that before seeking to file the first

appeal before the lower appellate court, the appellants had filed Regular

Civil Suit No.5/2018 seeking to quash and set aside the decree passed in the

present suit. That suit was also dismissed on 04.07.2018 and it is thereafter

that the appellants had filed the First Appeal on 03.09.2018 with a prayer to

condone the delay of 3 years, 2 months and 9 days in filing the First Appeal.

4. After having heard both the sides and perusing the judgment

under challenge it is quite apparent that the appellate court seems to have

got swayed away by the fact that the respondent plaintiff was waiting for

justice for years together and had succeeded in getting the decree executed

by removing the dwelling house of the appellants. To my mind, this

approach of the lower appellate court is not legally correct.

5. The question that was to be addressed and decided was as to

whether within the parameters of Section 5 of the Limitation Act, the

appellants had demonstrated sufficient cause for condoning the delay.

Merely because the decree was executed, one could not have made it a

ground to refuse to condone the delay. Precisely for this reason, in order to

meet a contingency of this kind, provision of restitution has been

contemplated under Section 144 of the Code of Civil Procedure to enable

restitution of possession if the appellate court subsequently sets aside the

decree for possession. Therefore there was no question of the appeal having

905.CA.3162.21.odt

become infructuous. Though not in so many words this was precisely what

has weighed with the lower appellate court.

6. Again, the order under challenge does not clearly spell out

about the learned Judge of the lower appellate court having considered the

effect of filing of a subsequent suit by the appellant bearing RCS No.5/2018.

Though he could notice that it was subsequently dismissed, she failed to

take note of the provision of Section 14 of the Limitation Act which enables

a party to seek exclusion of limitation if it prosecutes a wrong remedy or

chooses a wrong forum bona fide.

7. It is trite, as has been laid down in catena of judgment including

in the matter of Collector, Land Acquisition Vs. Mst. Katiji ; (1987) 2 S.C.C.

107, Ramlal and Ors. Vs. Rewa Coalfields Ltd.; AIR 1962 SC 361, the

approach of this Court in the matter of condonation of delay is to examine

as to if the delay was intentional or deliberate or that the inaction was

prompted with some mala fides. The underlying principle being a party

would not gain anything by allowing his remedy to be lost by efflux of time.

If, admittedly, appellants have lost their dwelling house alleged to be erected

by encroaching over the property of the respondent, they were not to gain

anything by not preferring the appeal challenging the decree in time. Under

some advice they seems to have approached wrong forum with the incorrect

remedy of filing a separate suit RCS No.5/2018 seeking declaration

regarding nullity of the decree passed in the matter in hand.

8. If such is the state of affairs, the lower appellate court while

905.CA.3162.21.odt

passing the impugned order having clearly failed to take cognizance of the

facts within the parameters of Sections 5 and 14 of the Limitation Act and

having refused to condone the delay by insinuating that probably the appeal

had become infructuous by execution of the decree, is clearly unsustainable

in law.

9. I therefore answer both the points in negative and allow the

Second Appeal by imposing appropriate costs.

10. The Second Appeal is allowed. The impugned order of the

lower appellate court is quashed and set aside. The Civil Miscellaneous

Application No.278/2018 filed by the appellant before it stands allowed

subject to payment of cost of Rs.5000/- to the respondent. The cost to be

deposited in the lower appellate court within four weeks from today failing

which this order shall stand revoked automatically. On such cost being

deposited, the delay would stand condoned and the appeal would be

registered. The respondent shall be entitled to claim the cost from the lower

appellate court.

11. Parties to appear before the lower appellate court on

21.02.2022.

(MANGESH S. PATIL, J.)

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