Bombay High Court
Taibai W/O Chandrashekhar Gaurkar And ... vs Harishchandra R. Borkute on 22 January, 2020
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVN. APPLN. NO. 19 OF 2019
Taibai w/o Chandrashekhar Gaurkar and others
-Vs.-
Lahuji Manohar Hanskar
CIVIL REVN. APPLN. NO. 20 OF 2019
Taibai w/o Chandrashekhar Gaurkar and others
-Vs.-
Suman Shamrao Chapale
CIVIL REVN. APPLN. NO. 21 OF 2019
Taibai w/o Chandrashekhar Gaurkar and others
-Vs.-
Umaji Nagoji Bhivankar
CIVIL REVN. APPLN. NO. 22 OF 2019
Taibai w/o Chandrashekhar Gaurkar and others
-Vs.-
Budhaji Yerraji Madavi
CIVIL REVN. APPLN. NO. 23 OF 2019
Taibai w/o Chandrashekhar Gaurkar and others
-Vs.-
Harishchandra R. Borkute
CIVIL REVN. APPLN. NO. 24 OF 2019
Taibai w/o Chandrashekhar Gaurkar and others
-Vs.-
Khushabrao Diwase(Dead),thr.LRs,Kavita Diwase and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. Rohit Joshi, counsel for the applicants.
Mr. V.N.Morande, counsel for the respondents in CRA Nos.19,
20, 21, 22, 23 of 2019.
Mr. A.A.Dhawas, counsel for the respondents in CRA No.24 of
2019.
KHUNTE
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CORAM : MANISH PITALE, J.
DATE OF CLOSING: 16.01.2020.
DATE OF PRONOUNCING: 22.01.2020 As a common issue arises in these revision applications, they are being decided by this common order.
2. The revision applicants in all these applications are the same and they are the original plaintiffs, who had filed suits against the respondents herein, for declaration, injunction and recovery of possession. According to the applicants, the respondents herein had encroached upon various portions in the suit property.
3. The applicants claimed that they had title in the suit property, as their predecessor had become exclusive owner thereof, on the basis of a registered gift deed dated 07/02/1948. In fact, the applicants had filed 21 suits for removal of such encroachments by various parties, including the respondents herein. All the said suits were decreed in favour of the applicants wherein findings were rendered that their predecessor had become owner of the suit property on the basis of the said registered gift deed dated 07/02/1948 and that they had been able to prove their title in the suit property. It was further found by the Court of Civil Judge, Senior Division, Gadchiroli (Trial Court) that the applicants had been able to prove that the respondents and other such KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 3/17 persons had encroached upon the suit property and further that one Tukaram Borkute, through whom the respondents and other such persons were claiming title on the basis of sale deeds, had no right, title or interest in the suit property to be able to execute such sale deeds.
4. Appeals were filed against such decrees passed by the Trial Court in favour of the applicants by the defendants therein. Some of the appeals were filed within the period of limitation and it is informed by the learned counsel appearing for the respondents herein that such appeals are at the stage of final hearing before the Court of District Judge, Gadchiroli (Appellate Court). But, in some cases, the appeals were filed after considerable delay and the original defendants were constrained to file applications for condonation of delay in such appeals. The respondents herein are such applicants whose applications for condonation of delay were allowed by impugned orders passed by the Appellate Court. By the orders, challenged in these revision applications, delay was condoned by the Appellate Court by imposing condition of payment of costs of Rs.1,000/- by the respondents.
5. Mr. Rohit Joshi, learned counsel appearing for the applicants in all these revision applications submitted that perusal of the applications for condonation of delay filed on behalf of the KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 4/17 respondents would show that they were casually drafted and it was merely stated that the respondents were illiterate and that they were not informed by their advocate about the decrees passed against them in the year 2015 and further that they became aware of decrees, only when they received notices from Executing Court sometime in the months of August and September, 2018. According to the learned counsel for the revision applicants, the said reasons given in the applications for condonation of delay could be said to be palpably false, because roznama of the Trial Court would show that in some cases the respondents along with their Advocates were present when the judgments and decrees were passed by the Trial Court and in some cases, the Advocate was present. On this basis, it was submitted that the statement made on behalf of the respondents that they acquired knowledge about the decrees for the first time in August/September, 2018 was a false statement and only on this ground, the applications for condonation of delay ought to have been rejected. The learned counsel appearing for the applicants invited attention of this Court to various judgments indicating that those who do not approach the Court with clean hands do not deserve exercise of discretion in their favour in matters concerning condonation of considerable delay of more than four years in approaching the Appellate Court. The learned counsel relied upon judgments of the Hon'ble KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 5/17 Supreme Court in the cases of Isha Bhattacharjee v. Managing Committee, Raghunathpur Nafar Academy and others, reported in (2013) 12 SCC 649, Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (dead) through LRs, reported in (2012) 5 SCC 370, Salil Dutta v. T.M.And M.C.Private Ltd., reported in (1993) 2 SCC 185 and order dated 18/06/2019 of this Court in Civil Application No.19 of 2018 in Second Appeal Stamp No.22803 of 2017 (Kanta alias Shanti w/o Subhash Karkale v. Manjulabai alias Kholki w/o Haribhau Tarare and anr.).
6. On the other hand, Advocate Mr. V.N. Morande and Advocate Mr. A.A. Dhawas, learned counsel appearing for the respondents in the revision applications, submitted that the statements made in the applications for condonation of delay were based on correct facts and since the respondents were illiterate persons, they were unable to realize the consequences of the decrees passed against them and it was only when the decrees were put to execution and notices were received by the respondents from the Executing Court that they rushed to the Appellate Court to file the appeals along with applications for condonation of delay. It was submitted that in the facts and circumstances of the present case, it could not be said that false statements were made on behalf of the respondents before the Appellate Court. The KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 6/17 learned counsel for the respondents submitted that the law of limitation was not meant to destroy the rights of parties and that if a plausible explanation was given on behalf of the applicants seeking condonation of delay, the Court would exercise jurisdiction to condone delay so as to ensure that the dispute between the parties was resolved on merits. It was further submitted that some appeals arising from identical decrees, which were filed within limitation were now at the stage of final hearing before the Appellate Court and if the appeals filed by the respondents herein were not considered on merits, it would lead to an anomalous situation that in some cases, if the appeals stood allowed, findings would be rendered in favour of persons identically situated like the respondents herein while the decrees would stand confirmed against the respondents if the impugned orders condoning delay were reversed. It was submitted that the subject matter of dispute in all the appeals was the registered gift deed dated 07/02/1948, allegedly executed in favour of the predecessor of the applicants and if it was found by the Appellate Court in the case of other similarly situated persons that the said document was not sustainable, the decrees against the respondents would attain finality despite the very source of title of the applicants being proved unsustainable. On this basis, it was submitted that this Court while exercising revisional jurisdiction ought not to KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 7/17 interfere with the impugned orders. It was further submitted that when the Court considering the applications for condonation of delay had exercised discretion in favour of the respondents, this Court exercising revisional jurisdiction may not interfere in the interest of justice, particularly when the applicants had failed to demonstrate any jurisdictional error committed by the Appellate Court in allowing the applications for condonation of delay facilitating consideration of appeals of the respondents on merits. The learned counsel for the respondents relied upon judgments of the Hon'ble Supreme Court in Civil Appeal No.4507 of 2019 in the case of Robin Thapa v. Rohit Dora, N. Balakrishnan v. M. Krishnamurthy, reported in (1998) 7 SCC 123 and M.K.Prasad v. P. Arumugam, reported in AIR 2001 SC 2497.
7. Having heard the learned counsel for the rival parties, it needs to be examined whether the Appellate Court in the present cases did exercise its discretion on the question of condonation of delay in a proper manner and whether the applicants before this Court are justified in contending that the reasoning adopted by the Appellate Court was unsustainable.
8. A perusal of the material on record shows that in Civil Revision Application No.19 of 2019, there was a delay of 4 years, 9 months and 14 days on the KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 8/17 part of the respondents in filing appeal before the Appellate Court. In Civil Revision Application No.20 of 2019 period of delay was 4 years, 6 months and 13 days. In Civil Revision Application No.21 of 2019, the period of delay was 4 years 9 months and 20 days. In Civil Revision Application No.22 of 2019, the period of delay was 3 years 10 months and 3 days. In Civil Revision Application No.23 of 2019, the delay was 4 years 9 months and 15 days and in Civil Revision Application No.24 of 2019, the delay was 4 years 9 months and 17 days.
9. In all these applications, the respondents claimed that they acquired knowledge of the decree passed by the Trial Court on various dates in August/ September 2018. It was submitted that when notices were received from the Executing Court to the effect that the decrees passed against the respondents had been put to execution that they came to know for the first time about existence of the said decrees, whereupon they applied for certified copies and upon receiving such certified copies, they immediately preferred appeals before the Appellate Court along with applications for condonation of delay in October, 2018. A perusal of the applications for condonation of delay filed in the revisional applications shows that similar reasons have been put forth on behalf of the respondents. It has been contended that the respondents are poor and illiterate persons having no KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 9/17 knowledge of legal complications and further that their belief and faith in the applicants herein had caused them to suffer such a fate. The dates pertaining to the receipt of notices from the Executing Court, applications for certified copies and receipt thereof have been stated in the applications, in order to explain the delay.
10. The said applications were opposed on behalf of the applicants herein by stating that the reasons given in the applications for condonation of delay were wholly unsustainable and that the respondents and/or their Advocate had continuously attended proceedings before the Trial Court till pronouncement of judgments and that therefore, it was unbelievable that the respondents came to know about the said decrees only in August/September 2018.
11. The Appellate Court has passed the impugned orders adopting similar reasoning while condoning delay. The Appellate Court has come to the conclusion that delay on the part of the respondents could not be said to be deliberate and intentional, because they had nothing to gain by approaching the Appellate Court after such delay. It was found that the appeals could be heard on merits in the interest of justice and therefore, delay was condoned, by referring to the law laid down by the Hon'ble Supreme Court in the case of Collector, Land KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 10/17 Acquisition, Anantnag v. Mst. Katiji and others, reported in (1987) 2 SCC 107.
12. While emphasizing that the respondents had made false statements in their applications for condonation of delay and that they had not approached the Appellate Court with clean hands, the learned counsel appearing for the applicants, apart from relying upon the judgments of the Hon'ble Supreme Court in the cases of Isha Bhattacharjee v. Managing Committee, Raghunathpur Nafar Academy and other (supra), Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (dead) through LRs, (supra) Salil Dutta v. T.M. And M. C. Private Ltd. (supra), also relied upon order of this Court in the case of Kanta alias Shanti w/o Subhash Karkale v. Manjulabai alias Kholki w/o Haribhau Tarare and anr. (supra). A perusal of the said judgments would show that applications for condonation of delay are expected to be drafted with careful concern and not in a haphazard manner and further that the Courts are not supposed to deal with the applications for condonation of delay in a routine manner. It has been been further held that although 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. In KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 11/17 the case of Salil Dutta v. T.M. And M. C. Private Ltd. (supra), the Hon'ble Supreme Court has emphasized that the Advocate is the agent of the party and that there is no absolute rule that a party can disown its Advocate at any time and seek relief. In the case of Kanta alias Shanti w/o Subhash Karkale v. Manjulabai alias Kholki w/o Haribhau Tarare and anr. (supra), the learned Single Judge of this Court refused to condone delay by taking note of the fact that it was very easy for a litigant to make allegations against the Advocate behind his back and that the applicants seeking condonation of delay, not having taken any steps against such Advocate under the provisions of the Advocates Act, 1961, is a relevant factor. But, it is relevant that in the said order passed by this Court in Kanta alias Shanti w/o Subhash Karkale v. Manjulabai alias Kholki w/o Haribhau Tarare and anr. (supra), the applicants sought condonation of delay of about 20 years in approaching this Court while filing second appeal. A perusal of the judgments relied upon by the learned counsel appearing for the respondents i.e. in the cases of Robin Thapa v. Rohit Dora (supra) and N. Balkrishnan v. M. Krishnamurthy (supra) shows that the law of limitation and its implication has been succinctly stated in the case of N. Balkrishnan v. M. Krishnamurthy (supra) as follows :-
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 12/17 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During the efflux of time, newer KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 13/17 causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
13. The said position of law indicates that length of delay cannot be the only factor although it would be a relevant factor while considering the question of condonation of delay. It is significant that the Hon'ble Supreme Court laid down that once a Court accepts the explanation for delay as sufficient, which is the result of positive exercise of discretion, normally the superior Court would not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly unsustainable grounds or it was found to be arbitrary or perverse.
14. Thus, the applicants in the present case need to demonstrate that the discretion positively exercised by the Appellate Court in these cases could be said wholly unsustainable, arbitrary or perverse. This shows that the applicants have to pass a tough test to be able to convince this Court to upset the KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 14/17 orders passed by the Appellate Court in favour of the respondents while condoning delay. A perusal of the impugned judgments and orders passed by the Appellate Court shows that emphasis has been placed on the aspect that the respondents are poor and illiterate and that they have nothing to gain by delaying filing of appeals before the Appellate Court, in order to have the decrees set aside. Reference has been made to judgment of the Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag v. Mst. Katiji and others (supra), wherein the Hon'ble Supreme Court has laid down that refusing to condone delay can result in meritorious matters being thrown out at the very threshold and the cause of justice being defeated.
15. The fact that notices of the Executing Court were received by the respondents in August/ September 2018, pertaining to decrees passed against them in the year 2015, is not disputed by the applicants herein. It is also a matter of record that upon receiving such notices, the respondents immediately took steps to obtain certified copies of the judgments and decrees passed against them and then to immediately move the Appellate Court by filing appeals along with applications for condontion of delay. All these facts have been taken into consideration by the Appellate Court while passing the impugned judgments and orders thereby KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 15/17 exercising positive discretion in favour of the respondents for condoning delay. Such orders passed by the Appellate Court cannot be said to be suffering from any jurisdictional error and this Court is unable to come to the conclusion that the impugned orders passed by the Appellate Court are wholly unsustainable or arbitrary or perverse.
16. Apart from this, the record shows that despite the decrees being passed in favour of the applicants herein, in the year 2015, such decrees were admittedly put to execution by the applicants against the respondents herein, only in the year 2018 i.e. after about three years of passing of the decrees by the Trial Court. This aspect assumes significance, in the facts and circumstances of the present case, where the respondents state that they are poor and illiterate persons. Another factor, which is relevant in the present case is that the applicants had filed as many as 21 suits against various persons including respondents, claiming that they had encroached upon various portions of the suit property. About 10 appeals have been filed by the defendants within the period of limitation and it is not disputed that they are at the stage of final hearing before the Appellate Court. The central issue in such appeals and all appeals that arise from decrees passed in favour of the applicants, is the validity of registered Will Deed dated 07/02/1948, on the basis of which, the KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 16/17 applicants claim title to the suit property and hence, their right to claim decrees of possession against the respondents. The other crucial issue for consideration in all cases is, as to whether the person, who executed sale deeds in favour of the respondents in respect of various portions in the suit property, had any right, title or interest to be able to execute such sale deeds. Thus, there is a clear common thread in all these cases and it would be a travesty that some appeals would be decided on merits and others would not be even considered, as a result of which there is a possibility that in some cases the decrees may not be upheld depending upon findings on the aforesaid crucial issues, while in other cases, if delay is not condoned, the decrees would get confirmed in favour of the applicants in the absence of contest on merits.
17. Such a situation cannot be countenanced and therefore, particularly in view of the fact that this Court does not find existence of sufficient grounds to exercise revisional jurisdiction in favour of the applicants, it is found that these applications do not deserve to be allowed.
18. In view of the above, this Court finds that the revisional applicants have not been able to make out a case for interference with the impugned judgments and orders and therefore, the revision applications are dismissed. But at the same time, imposition of KHUNTE ::: Uploaded on - 23/01/2020 ::: Downloaded on - 24/01/2020 02:19:15 ::: cra19.19+5.odt 17/17 costs of only Rs.1,000/- by the Appellate Court was not justified and hence, the amount of costs payable by the respondents to the applicants herein is enhanced to Rs.5,000/- in each case. Accordingly, the respondents will have to deposit the amount of costs of Rs.5,000/- in each case before the Appellate Court within a period of four weeks from today and only thereafter the Appellate Court will take up the appeals for consideration on merits. The applicants will be entitled to withdraw the said amounts from the Appellate Court.
19. All the revision applications are disposed of in the above terms.
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