Bombay High Court
Chandrakant Govind Sutar vs M.K. Associates And Anr. on 11 December, 2002
Equivalent citations: 2003(4)BOMCR169, 2003(1)MHLJ1011, 2003 A I H C 1743, (2003) 1 ALLMR 799 (BOM), (2003) 1 MAH LJ 1011, (2003) 2 ICC 727, (2003) 5 ALLINDCAS 471 (BOM), (2003) 2 CIVLJ 523, (2003) 4 BOM CR 169
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This Civil Revision Application under Section 115 of the Civil Procedure Code takes exception to the order passed by the District Judge, Raigad dated 29th July, 1998 in Civil Misc. Application No. 114 of 1997. The said Misc. Application was filed for condonation of delay in filing the Appeal. The District Court rejected that application on the ground that no sufficient cause was made out by the petitioner. That decision is the subject matter of challenge in the present Revision Application.
2. This Revision Application was heard on 3rd December, 2002, when I was persuaded to take a view that it is maintainable, amended provisions of Civil Procedure Code notwithstanding. However, after that view was pronounced in open Court, immediately thereafter Mr. Oka, learned Counsel for the petitioner, mentioned the matter and in his usual fairness brought to my notice that certain decisions relevant on the issue of maintainability of the Revision have not been placed before the Court. He, therefore, requested me not to sign the judgment pronounced in the Court and instead to keep the matters for rehearing on some other day on the question of maintainability of the Revision Application. This request was acceded to having regard to the dictum of the Apex Court in . In this background, along with this petition companion Revision Applications have been kept for hearing today. Counsel appearing for the petitioner(s) in the companion matters have adopted the argument of Mr. Oka.
3. On the previous occasion Mr. Oka supported by other Counsel appearing in the companion petitions contended that the order passed on an application for condonation of delay in filing appeal is an order passed in "other proceedings" - as the application is one under Section 5 of the Limitation Act. To buttress this proposition, Mr. Oka had relied upon the relevant provisions of Order XLI Rule 3(A) of Civil Procedure Code read with the provisions in Rules 337 and 453 of the Civil Manual applicable to the State of Maharashtra. Relying on these provisions it was contended that the application for condonation of delay in filing Appeal is not part of the proceedings in the Appeal but a substantive or "other proceedings" and, therefore, order passed thereon is not an order passed in Appeal. If this contention were to be accepted then, Mr. Oka would be justified in arguing that the Revision Application would be maintainable because the order passed on application for condonation of delay in filing the Appeal would finally dispose of the "other proceedings", namely, proceedings other than the appeal, if the Revision was to be allowed in favour of the Petitioner. However, in all fairness Mr. Oka has now brought to my notice decisions which would clinch the question that arises for consideration.
4. The principal aspect that needs to be addressed while examining the question of maintainability of Revision under Section 115 of the Code of Civil Procedure in the present case is; whether the order passed on application for condonation of delay is an order passed in any "other proceedings" or in the appeal? If the answer to this querry is that it is former, it would necessarily follow that Revision Application under Section 115 Civil Procedure Code as amended would be amenable; whereas if the answer is the latter, then the Revision Application will be unavailable inasmuch as if the Revision Application against the order rejecting the application for condonation of delay in filing the Appeal was to be allowed then this Court will have to necessarily revive the appeal proceedings before the appellate Court and, since the appeal will not be finally disposed of by the order of this Court, this Court is precluded to exercise revisional jurisdiction under Section 115. The position would, however, be different when the first appeal Court allows the application for condonation of delay in filing the Appeal, for if this Court was to interfere in the Revision Application filed by the aggrieved party and set aside the order passed on the application for condonation of delay then, obviously, the appeal itself would stand finally disposed of. In other words, in cases where the application for condonation of delay is allowed by the subordinate Court, revision under Section 115, Civil Procedure Code would be available.
5. The decision of the Apex Court in the case of Messrs. Mela Ram and Sons v. Commissioner of Income Tax, Punjab would clinch the issue. No doubt the Apex Court was considering the provisions of Section 30(1) of the Income Tax Act but in para 9 of its decision has observed as follows :
"On the principles laid down in these decisions, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal"
This statement of law is founded on the precedents which construed the provisions of the Code, as referred to in paragraph 9 of the same decision. This principle has been reiterated by the Apex Court in a subsequent decision in the case of Rani Choudhury v. Lt. Col. Suraj Jit Choudhury. In paragraph 4, Justice R. S. Pathak (as he then was) has observed as follows :
"There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time barred was one disposing of the appeal."
Having regard to this statement of law, indubitably the order passed on an application for condonation of delay in filing appeal is one passed in appeal. The fact that the Court refused to entertain the appeal being barred by limitation does not mean that the order is not passed in appeal as such.
6. Mr. Oka, however placed reliance on the observation of the Apex Court in the case of Essar Constructions v. N. P. Rama Krishna Reddy . Reliance was placed particularly on observation in paragraph 20 where the Apex Court has observed that limitation, like the question of jurisdiction may be provided for in a separate statute but it is a defence available in the suit, appeal or application. The Apex Court further observed that of course, the question as far as appeals are concerned may be debatable having regard to the provisions of Order 41 of the Code of Civil Procedure relating to admission of appeals as an appeal may not be admitted at all because it is barred by limitation. Much emphasis was placed on this observation. However, to my mind, it has to be understood in the context of the issue considered by the Court in that case. The same will be of no avail to the petitioner. Moreover, this submission overlooks that the Apex Court then went on to observe that it was expressing final view in the matter. In my view, reliance placed on this decision is inapposite. Mr. Oka also placed reliance on the decision of the Division Bench of our High Court in Bhagwan G. Godsav v. Kachrulal B. Samdariya to contend that memorandum of appeal which is barred by limitation and accompanied by an application for condonation of delay under Order 41, Rule 3A(1) is not an appeal but a proposed appeal after the delay is condoned and heard under Rule 11. To my mind, the question that needs to be addressed in this case is not as to whether the memorandum of appeal which is presented beyond limitation is an appeal or a proposed appeal or whether the Court will have jurisdiction to entertain the appeal and pass any other order till the delay in filing the same is condoned. Whereas, the proposition that arises for consideration in the present case is the settled legal position as would be seen from the reported decisions of the Apex Court in the case of Mela Ram (supra) and in particular in Rani Choudhary (supra). The law is well settled that the order dismissing the Appeal as time barred is the one passed in Appeal. The Apex Court in Rani Chaudhary's case (supra) while dealing with the provisions of Civil Procedure Code has observed that an appeal may also be dismissed on the ground of limitation, if condonation of delay in filing an appeal is not allowed by the Court. The consequence of dismissing the application for condonation of delay in filing the appeal in law is one of disposing of the appeal as time barred and therefore one passed in appeal.
7. A priori, having regard to the view taken by this Court in C.R.A. Nos. 803 of 1996, Nagorao alias Arun s/o Narayan Yerawar and two Ors. v. Narayan s/o Nagan Yerawar and one other (since reported in 2002(4) Mh.L.J. 615), 859 of 2002 Rajabhau s/o Mahadeorao Rahale v. Dinkar s/o Shantaram Ingole and 57 of 2002, Bharatkumar s/o Shriramnarayan Agarwal and Ors. M/s Anita Trust (since reported in 2002(4) Mh.LJ. 597) decided by Justice Palshikar at Nagpur Bench as well as C.R.A. No. 1674 of 2002 Zahida Nizamuddin Jalal and Ors. v. Abidali Jafferali Syed and Ors. (since reported in 2002(4) Mh.L.J. 913) decided by Justice Khandeparkar at Bombay bench and in view of the amendment to the provisions of the Code of Civil procedure, this Revision Application is not maintainable.
8. In the circumstances, the same is dismissed. All questions are left open.
9. While parting I would like to make a special mention regarding the fairness of Mr. Oka, Advocate. He conducted the matter with a sense of detachment. In his own inimitable style he did the wonderful act of balancing of his duty to his client and as an officer of the Court concerned in the administration of justice. He has fully discharged his overriding duty to the Court to the standards of his profession, and to the public, by not withholding authorities which go against his client. As Lord Denning, M. R. in Randel V. W., (1996) 3 All E. R. 657 observed - the Counsel has time and again to choose between his duty to his client and his duty to the Court. This is a conflict often difficult to resolve; and he should not be under pressure to decide it wrongly. Whereas, when the Advocate puts his first duty to the Court, he has nothing to fear. But it is a mistake to suppose that he (Advocate) is the mouth piece of his client to say what he wants. The Code which obligates the Advocate to disregard the instructions of his client, if they conflict with his duty to the Court, is not a code of law - It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline. This view is quoted with approval by the Apex Court in Re. T. V. Choudhary .