Bombay High Court
Syed Salimuddin Syed Nasiruddin ... vs Nayyar Jahan Begum Syed And Anr on 3 January, 2022
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.5805 OF 2020
IN SAST/40384/2017
SYED SALIMUDDIN S/O SYED NASIRUDDIN
VERSUS
NAYYAR JAHAN BEGUM W/O SYED MOINUDDIN AND ANOTHER
...
Mr. A.S. Kulkarni, Advocate for the applicant
Mr. A.P. Bhandari, Advocate for the respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 13th OCTOBER, 2021
PRONOUNCED ON : 03rd JANUARY, 2022
ORDER :
1 Present application has been filed for getting the delay of 399
days condoned in filing Second Appeal.
2 Heard learned Advocate Mr. A.S. Kulkarni for the applicant and
learned Advocate Mr. A.P. Bhandari for the respondent No.1.
3 It has been vehemently submitted on behalf of the applicant that
the applicant wants to challenge the Judgment and Decree passed in Regular
Civil Suit No.906/2011, thereby the plaint came to be rejected under Order
VII Rule 11(d) of the Code of Civil Procedure as hit by principle of res
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judicata under Section 11 of the Code of Civil Procedure and the said order
has been confirmed by the First Appellate Court in Regular Civil Appeal
No.114/2013 before learned District Judge-7, Aurangabad dated 18.07.2016.
The delay of 399 days has been caused due to the ill health of the General
Power of Attorney of applicant. He was suffering from kidney stone and
spondylosis, for which he has taken treatment. The applicant has good case
on merits. Reliance has been placed on the decision in Shrihari Hanumandas
Totala vs. Hemant Vithal Kamat and others, Civil Appeal No.4665 of 2021
arising out of SLP (C) No.3899 of 2021, decided by Hon'ble Apex Court on
09th August, 2021, wherein it has been observed that when evidence is not
tendered and the plaint, on the face of it, does not disclose any fact that may
lead us to conclusion that it deserves to be rejected on the ground that it is
barred by principles of res judicata. But then such application under Order
VII Rule 11 of the Code of Civil Procedure must be decided within the four
corners of plaint.
3.1 Further reliance has been placed on the decision in The Jamia
Masjid vs. Sri. K.V. Rudrappa (since dead) by LRs and others, Civil Appeal
No.10946 of 2014, decided by the Three Judge Bench of the Hon'ble Apex
Court on 23rd September, 2021, wherein it has been held that -
"Issues that arise in a subsequent suit may either be questions of fact
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or of law or mixed questions of law and fact. An alteration in the
circumstances after the decision in the first suit, will require a trial for
the determination of the plea of res judicata if there arises a new fact
which has to be proved. However, the plea of res judicata may in an
appropriate case be determined as a preliminary issue when neither a
disputed question of fact nor a mixed question of law or fact has to be
adjudicated for resolving it."
It was also concluded that -
"While a compromise decree in a prior suit will not bar a subsequent
suit by virtue of res judicata, the subsequent suit could be barred by
estoppel by conduct."
The learned Trial Court in this case has not considered the
similarity in the issue of the earlier decided suit and the present suit and
without there being any evidence proceeded to decide the application. In
fact, prior to the said decision to reject the plaint by order dated 11.03.2013,
similar application was rejected by the same Judge on 19.10.2012.
Therefore, the present applicant has very good case as the substantial
questions of law are arising in this case. The delay was unintentional and,
therefore, it deserves to be condoned.
4 Per contra, the learned Advocate appearing for the respondent
No.1, after taking this Court to the affidavit-in-reply filed on behalf of the
respondent No.1, submitted that the ground that has been given for
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condoning the delay is the ill health of the Power of Attorney. Health issue of
Power of Attorney of the applicant cannot be the ground to condone the
delay. The applicant has not produced any record to support the fact that he
had approached some clinic or hospital. The delay is inordinate and cannot
be condoned merely by asking.
5 There is no doubt that the delay of 399 days is inordinate,
however, whether satisfactory explanation has been given or not, is a
question. Unfortunately, though specific name of the clinic, where Power of
Attorney has allegedly taken treatment has been stated; documentary
evidence has not been produced. It will not be out of place to mention here
that even the suit that was filed was through the same Power of Attorney.
The appeal was also through the same Power of Attorney. Under such
circumstance, the original plaintiff might be dependent on the said Power of
Attorney. However, the original plaintiff is resident of Aurangabad and the
General Power of Attorney holder is also from Aurangabad. It is hard to
believe that for about 399 days the original plaintiff would not have come to
know that the General Power of Attorney holder had given him entire
information about the dismissal of his appeal in time; yet, as he was
dependent on the Power of Attorney, he believed that the Power of Attorney
would do the necessary steps for preferring an appeal. Affidavit of original
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plaintiff has not been filed. Whatever verification has been done along with
the application is that of the Power of Attorney and, therefore, when it is not
accompanied by the documents and delay is inordinate, leniency cannot be
shown. Every litigant should be alert about his rights. For some convenience
to agitate that right the plaint can be presented through Power of Attorney,
but when the plaintiff was seeking declaration that the Judgment and Decree
passed in earlier instituted suit in the year 1966 should be declared as null
and void, on the ground that it was obtained by suppressing and concealing
various facts, then, the plaintiff should have been alert about his rights. He
could not have afforded to only rely on the General Power of Attorney. The
provision for appointment of General Power of Attorney is not for proxy
litigation or purchased litigation. When plaintiff wanted to contend that he
has substantial right in the property and when he could gather that the Power
of Attorney is ill, he could have at least presented the Second Appeal in time.
6 The plaintiff may be having a good case on merits, but in view of
the fact that he has failed to show reasonable, much less sufficient ground to
condone the delay, we cannot go into the merits of the case. Under such
circumstance, the application stands rejected.
( Smt. Vibha Kankanwadi, J. )
agd
