Bombay High Court
M/S S.S. Kapoor And Company Thr. Its ... vs The Municipal Council, Kamptee Thr. Its ... on 12 September, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL APPLICATION (CAO) NO. 1307 OF 2019
IN
MISC. CIVIL APPLICATION (ST) NO. 6133 OF 2019
IN
FIRST APPEAL NO. 694 OF 2012 (D)
M/s S. S. Kapoor & Company & Ors. ... APPLICANTS
Versus
The Municipal Council, Kamptee & Ors. ... RESPONDENTS
Mr. R. T. Anthony, Advocate for Applicants.
Mr. T. Mirza, Advocate h/f Mr. A. M. Quazi, Advocate for Respondent No.1.
CORAM : PRAVIN S. PATIL, J.
ARGUMENTS HEARD ON : SEPTEMBER 09, 2025.
PRONOUNCED ON : SEPTEMBER 12, 2025.
ORDER
. Heard learned Counsel for the parties.
2. By this Application, the Applicants are seeking condonation of
2289 days delay in filing the application for restoration of Appeal, which was
dismissed by the Registrar (Judicial) of this Court vide order dated
27/11/2012 on the ground that Applicants have neither paid bhatta nor
supplied copies for issuing notices to the Respondents.
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3. The Applicants stated that the challenge in the present Appeal is
to the Judgment and Decree dated 31/10/2011 passed by the Civil Judge
Senior Division, Nagpur in Special Civil Suit No. 1358/1995, whereby in a suit
for recovery of amount the Judgment and Decree was passed directing the
present Applicants to pay Rs.18,42,301/- with interest.
4. It is undisputed fact that Appeal against the Judgment and Decree
dated 31/10/2011 was filed well within time by the present Applicants by
engaging Counsel in the matter. Accordingly, after the hearing was conducted,
this Court, vide order dated 13/9/2012, Admitted the Appeal and issued
notices to the Respondents.
5. It is seen from the record that after passing order of issuing the
notices to the Respondents by this Court, it was necessary for the Advocate
who was engaged by the Applicants, to take necessary steps to pay bhatta and
supply copies of Memo of Appeal in the matter to serve the notices on the
Respondents. For that purpose, presence of the Applicants was not at all
required. The entire procedure was required to be done at the instance of
Advocate and his Clerk engaged by the Applicants. However, it is seen from the
record that for a considerable period, though sufficient opportunities were
granted, no steps were taken by the Advocate who was engaged by the present
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Applicants. Consequently, the Registrar (Judicial), by his order dated
27/11/2012 dismissed the Appeal in default in terms of Chapter VII Rule 6(e)
of the Bombay High Court Appellate Side Rules, 1960.
6. The present Applicants stated that as and when they contacted the
Advocate appointed by them, it was told to them that matter has been
Admitted by this Court by order dated 13/9/2012, it will take its own time to
list for final hearing, and therefore, as and when the matter will be listed for
final hearing, he will communicate to them, and accordingly, the present
Applicants were not made aware about the order dated 27/11/2012 passed by
the Registrar (Judicial).
7. It is stated by the Applicants that the present proceedings were
looked after on behalf of all the Applicants by the Applicant No.1, however, the
Applicant No.1 left for heavenly abode on 4/5/2016. Till that time there was
no reason for the Applicants to contact the Counsel and make enquiry about
the status of the Appeal.
8. After the death of Applicant No.1, in the month of
September-2017, the Applicants contacted the Counsel, who was engaged by
them, about the status of the Appeal. At that time, it was told to them that
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pecuniary jurisdiction of the District Court had been enhanced, and therefore,
the Appeal which is valued less than Rs.1.00 Crore will be transferred to the
District Curt. Hence, they will receive fresh notices from the District Court and
after the receipt of said notices, they can contact to the Counsel engaged by
them.
9. Under the bona fide belief, and same being true also, that peculiar
jurisdiction of the District Court had been enhanced, present Applicants waited
for a considerable period for notice of Appeal from the District Court, but they
received nothing for almost the period of 1½ year. Therefore, one of the
Applicants verified the status from the website of the High Court. On
verification of the same, it was revealed that Appeal has been already
dismissed in default on 27/11/2012.
10. Immediately after getting the knowledge of this fact, the
Applicants rushed to the Counsel and pointed out him the fact. The Counsel,
who was appearing on behalf of the Applicants, was also not aware about the
same. Therefore, the Applicants were of the view that Advocate is not properly
conducting their matter, and therefore, taken back case papers and engaged
present Counsel to conduct the present Appeal.
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11. It is stated by the Applicants that they have applied for certified
copy of the order dated 27/11/2012 which was received by them on
13/2/2019 and immediately thereafter the accompanying application is moved
for restoration of Appeal.
12. It is contended that the learned trial court while deciding the suit
for recovery of amount, has not properly appreciated the factual as well as
legal position and if the matter is not decided on its own merits, for the fault of
Counsel they will cause irreparable loss in the matter.
13. It is further stated that once the Appeal was handed over to the
Advocate, who has diligently filed the same, the present Applicants were no
reason to verify whether Bhatta/copies are required to be supplied in the
matter. According to the Applicants, they were not aware as to what procedure
is required to be adopted for issuing notices to the Respondents. According to
them, it was the responsibility of the Counsel to do the needful. Hence, for the
fault of the Advocate they should not be punished in the matter. Rather it is
stated that present Appeal is required to be decided on its own merits, instead
of denying justice on technical ground.
14. In response to the notices issued to the Respondents, Respondent
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No.1/Municipal Council appeared in the matter. Only the Respondent No.1
contested the Application. However, Respondent No.1 has not controverted the
submission made in the Application by filing any reply to the same. As such, all
the averments made by the Applicants on affidavit are not controverted in the
matter.
15. The main submission of the Respondent No.1 is that present
Applicants have taken a wrong stand and made false allegations against the
Advocate. Therefore, the reasons put-forth in the Application for condonation
of delay is not sufficient cause to condone the delay in the matter. The
Respondent No.1 has relied upon the various orders passed by this Court as
well as Hon'ble Supreme Court of India which will be discussed latter.
16. In the background of abovesaid factual position, I have heard both
the Counsels at length and perused the record as well as the case laws relied
upon by both the parties in the matter.
17. At the outset, it is stated that this Application is filed on
13/3/2019 and since then it is pending on the file of this Court. The docket of
the Application shows that this Court after hearing the parties, by order dated
15/12/2023, to show bona fides, directed the Counsel to take instructions
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whether the Appellants are willing to deposit the decreetal amount on account
of dismissal of the Appeal in default on 27/11/2012, for restoration of which,
Civil Application has been filed. The present Applicants positively stated that
they are ready to deposit the decreetal amount within a period of six weeks.
Accordingly, the Appellants, on 23/2/2024, deposited the decreetal amount
before this Court to show their bona fides.
18. In the present Application, one thing is required to be considered
that due to non-supply of copies after Admitting the Appeal by this Court, the
Registrar (Judicial) of this Court dismissed the Appeal. Therefore, the present
Applicants cannot be said to be at fault nor it can be said that they were
required to take any steps in the matter. According to me, once the matter was
handed over to the Advocate, it is the responsibility of Advocate to do the
needful in the matter. The Applicants cannot be punished and suffer injustice
merely because their Advocate had defaulted.
19. In this regard, it will be profitable to refer the Judgment of the
Hon'ble Supreme Court in the case of Rafiq and Another V/s Munshilal and
Another, (1982) 2 Supreme Court Cases 788. In paragraph 3 of this Judgment
Hon'ble Supreme Court has observed as under ;
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"3. The disturbing feature of the case is that under our
present adversary legal system where the parties generally
appear through their Advocates, the obligation of the parties is
to select his advocate, brief him, pay the fees demanded by him
and then trust the learned Advocate to do the rest of the things.
The party may be a villager or may belong to a rural area and
may have no knowledge of the court's procedure. After
engaging a lawyer, the party may remain supremely confident
that the lawyer will look after his interest. At the time of the
hearing of the appeal, the persona appearance of the party is
not only not required but hardly useful. Therefore, the party
having done everything in his power to effectively participate in
the proceedings can rest assured that he has neither to go to
the High Court to inquire as to what is happening in the High
Court with regard to his appeal nor is he to act as a watchdog
of the advocate that the latter appears in the matter when it is
listed. It is no part of his job. Mr. A. A. Sanghi stated that a
practice has grown up in the High Court of Allahabad amongst
the lawyers that they remain absent when they do not like a
particular Bench. May be, we do not know, he is better
informed in this matter. Ignorance in this behalf is our bliss.
Even if we do not put our seal of imprimatur on the alleged
practice by dismissing this matter which may discourage such a
tendency, would it not bring justice delivery system into
disrepute. What is the fault of the party who having done
everything in his power expected of him would suffer because
of the default of his advocate. If we reject this appeal, as Mr. A.
K. Sanghi invited us to do, the only one who would suffer
would not be the lawyer who did not appear but the party
whose interest be represented. The problem that agitates us is
whether it is proper that the party should suffer for the
inaction, deliberate omission, or misdemeanour of his agent.
The answer obviously is in the negative. May be that the
learned Advocate absented himself deliberately or intentionally.
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We have no material for ascertaining that aspect of the matter.
We say nothing more on that aspect of the matter. However, we
cannot be a party to an innocent party suffering injustice
merely because his chosen advocate defaulted. Therefore, we
allow this appeal, set aside the order of the High Court both
dismissing the appeal and refusing to recall that order. We
direct that the appeal be restored to its original number in the
High Court and be disposed of according to law. If there is a
stay of dispossession it will continue till the disposal of the
matter by the High Court. There remains the question as to who
shall pay the costs of the respondent here. As we feel that the
party is not responsible because he has done whatever was
possible and was in his power to do, the costs amounting to
Rs.200/- should be recovered from the advocate who absented
himself. The right to execute that order is reserved with the
party represented by Mr. A. K. Sanghi."
According to this Judgment, Hon'ble Supreme Court is of the view
that for the fault of the Advocate, the innocent party cannot be allowed to
suffer injustice in the matter.
20. Here admittedly the present Appeal on the day first was Admitted
by this Court for deciding the issue involved in the Appeal on its own merits.
Furthermore, the Applicants when asked to show their bona fides to deposit
the decreetal amount without any hesitation they have deposited the amount
before this Court. Therefore, I am of the opinion that present Applicants
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cannot be said to be at fault and their statement that earlier Counsel failed to
take necessary steps seems to be genuine statement in the matter.
21. It will further be appropriate to refer the Judgment of the Hon'ble
Supreme Court in the case of Esha Bhattacharjee V/s Managing Committee of
Raghunathpur Nafar Academy and Ors. (2013) 12 SCC 649 . In this case, the
Hon'ble Supreme Court had culled out the principles applicable to an
application for condonation of delay. Paragraph Nos.15 and 16 of the said
Judgment read thus :
"21. From the aforesaid authorities the principles that can broadly
be culled out are:
21.1.(i) There should be a liberal, pragmatic, justice-oriented,
non- pedantic approach while dealing with an application for
condonation of delay, for the courts are not supposed to legalise
injustice but are obliged to remove injustice.
21.2.(ii) The terms "sufficient cause" should be understood in
their proper spirit, philosophy and purpose regard being had to the
fact that these terms are basically elastic and are to be applied in
proper perspective to the obtaining fact- situation.
21.3.(iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and uncalled for
emphasis.
21.4.(iv) No presumption can be attached to deliberate causation
of delay but, gross negligence on the part of the counsel or litigant is
to be taken note of.
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21.5.(v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.6.(vi) It is to be kept in mind that adherence to strict proof
should not affect public justice and cause public mischief because the
courts are required to be vigilant so that in the ultimate eventuate
there is no real failure of justice.
21.7.(vii) The concept of liberal approach has to encapsule the
conception of reasonableness and it cannot be allowed a totally
unfettered free play.
21.8.(viii) There is a distinction between inordinate delay and a delay
of short duration or few days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted. That apart, the
first one warrants strict approach whereas the second calls for a
liberal delineation.
21.9.(ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the courts
are required to weigh the scale of balance of justice in respect of both
parties and the said principle cannot be given a total go by in the name
of liberal approach.
21.10.(x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should be vigilant not
to expose the other side unnecessarily to face such a litigation.
21.11.(xi) It is to be borne in mind that no one gets away with
fraud, misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
21.12.(xii) The entire gamut of facts are to be carefully scrutinized
and the approach should be based on the paradigm of judicial
discretion which is founded on objective reasoning and not on
individual perception.
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21.13.(xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines
taking note of the present day scenario. They are: -
22.1(a) An application for condonation of delay should be
drafted with careful concern and not in a half hazard manner
harbouring the notion that the courts are required to condone delay on
the bedrock of the principle that adjudication of a lis on merits is
seminal to justice dispensation system.
22.2(b) An application for condonation of delay should not be
dealt with in a routine manner on the base of individual philosophy
which is basically subjective.
22.3(c) Though no precise formula can be laid down regard
being had to the concept of judicial discretion, yet a conscious effort
for achieving consistency and collegiality of the adjudicatory system
should be made as that is the ultimate institutional motto.
22.4(d) The increasing tendency to perceive delay as a non- serious
matter and, hence, lackadaisical propensity can be exhibited in a
non-challant manner requires to be curbed, of course, within legal
parameters."
22. In the light of abovesaid legal position, I have considered the
submission made by the Respondent No.1 in the matter. The submission of the
Respondent No.1 is basically on the point that the Applicants have wrongly
stated that due to fault of the Advocate delay is caused in the matter. However,
no reply is placed on record to contravene the submission made by the
Applicants. His whole submission is on the basis of various Judgments
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delivered by this Court. He relied upon the case of Sanjay Madhaorao Dhone
V/s Vinayak Nagorao Khedikar in Second Appeal No. 263/2018 decided on
31/7/2023, wherein the statement has been made by the Applicant that he has
not engaged the Advocate, which was found to be incorrect after conducting
the cross-examination. The other Judgment, which he is relying upon, is of the
Delhi High Court in the case of Sujata Jain & Anr. through Attorney Holder
Nikesh Jain V/s Anil Kumar Jain & Ors. in CM (M) 3943/2024 & CM
APPL.69748/2024 decided on 16/5/2025, wherein the Delhi High Court has
recorded that the allegations against the Advocate that he has not given proper
advice cannot be a ground to condone the delay. However, the facts of the said
matter and the present Application are distinguishable. Here, after entrusting
of the Appeal, the Advocate failed to supply the copies and therefore Registrar
(Judicial) dismissed the Appeal. Hence, the Judgment delivered by the Delhi
High Court is not applicable in the matter.
23. The Respondent No.1 has strongly relied upon the Judgment of
this Court in the case of Kanta alias Shanti Subhash Karkale V/s Manjulabai
alias Kholki Haribhau Tarare and Another, 2020(1) Mh.L.J. 918, wherein the
allegations were made against the Advocate, but neither he was made a party
to the proceedings nor any action was taken against them as per the provisions
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of Advocate Act. Therefore, on that count, the Court declined to condone the
delay. However, no one can be always expected to lodge a complaint against
the Advocate rather than taking the recourse available with them.
24. Here in the present case, it is admitted fact that immediately after
getting the knowledge that Appeal has been dismissed in default, the present
Applicants approached to the Counsel and took back the case papers and
engaged the another Counsel. According to learned Counsel, this act is
sufficient, particularly in the facts and circumstances of the present case, to
reach to the conclusion that only because the earlier Counsel was at fault, they
have changed the Counsel and filed the present Application. Hence, according
to me, the Judgment relied upon by the Respondent No.1 is not helpful to him
in the present case.
25. The Respondent No.1 has then relied upon the Judgment of the
Hon'ble Supreme Court in the case of Union of India and Another V/s Jahangir
Byramji Jeejeehhoy (D) through his Lrs. 2024 AIR (SC) 1884 . Bare perusal of
the said Judgment states that while considering the plea for condonation of
delay, the Court must not start with the merits of the main matter. The Court
owes a duty to first ascertain the bona fides of the explanation offered by the
party seeking condonation. It is only for the sufficient cause assigned by the
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litigation and the opposition of the other side is equally balanced that the court
may bring into aid the merits of the matter for the purpose of condoning the
delay.
26. On the contrary, the Applicants have rightly relied upon the
Judgment of this Court in the case of Metal Rolling Works Ltd. V/s Haresh
Kapadia and Ors. in Interim Application No. 2047 of 2019 in Suit No. 3350 of
2009 decided on 28/2/2023, wherein this Court observed in paragraph No.23
as under :
"23. It is well recognised that ordinarily a party should not suffer
on account of fault or default in appearance of the Advocate whom
it had entrusted its case. When a party does everything in its power
to participate in the proceedings, by engaging an Advocate and
entrusting the brief, it is considered unjust to punish such a party for
default in appearance on the part of its Advocate. Generally, the
courts lean in favour of condoning the delay and restoring the
proceedings where there is material to show that the default is
attributable to the Advocate engaged by a party. Such approach in
accord with the well-recognised principle that the procedure is
handmaid of justice and it should not be allowed to score a march
over substantive justice. It is also in the interest of public justice that
a lis is decided on merits, rather than on technicalities or defaults."
27. Hence, in view of the aforesaid reasons and particularly the law
laid down by the Hon'ble Supreme Court in the case of Rafiq (supra) and the
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principles laid down in the case of Esha Bhattacharjee (supra), I am of the
opinion that though there is an inordinate delay, applying the aforesaid law,
which is applicable to the facts of the case, the reasons stated in the present
Application are sufficient cause for condonation of delay. Inconvenience and
prejudice caused to the Respondents, by restoring the Appeal, can be
compensated by awarding the costs. Hence, the following order.
ORDER
(a) Civil Application is allowed.
(b) The delay of 2289 days caused in filing the application for restoration of
Appeal is hereby condoned, subject to the costs of Rs.10,000/- to be
paid by the Applicants to the Respondents within a period of two weeks
from today.
(c) The Office is directed to register the application for restoration of Appeal
i.e. Misc. Civil Application and list the same for further consideration
after two weeks.
[PRAVIN S. PATIL, J.]
vijaya
Signed by: Mrs. V.G. Yadav
Designation: PS To Honourable Judge
Date: 12/09/2025 20:34:41
