Bombay High Court
Vithal S/O Dharmaji Potalwad vs Akrambee W/O Abdul Raheman on 12 June, 2014
Author: T.V. Nalawade
Bench: T.V. Nalawade
1 SA No.338 of 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.338 of 2014
With
Civil Application No.5196 of 2014
Vithal s/o Dharmaji Potalwad
Died, through legal representatives
Shantabai w/o Vithal Potalwad
And Others. .. Appellants.
Versus
Akrambee w/o Abdul Raheman
Died through legal representative
Jaitunbee w/o Hussain Khan
Died through her legal representatives
Hussain Khan s/o Chand Khan Pathan
And Others. ... Respondents.
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Shri. S.V. Chandole, Advocate, for appellants.
Shri. K.M. Nagarkar, Advocate, for respondents.
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CORAM: T.V. NALAWADE, J.
DATE : 12th JUNE 2014.
ORDER:
1) The appeal is filed against the decision of Misc Civil Application No.7/2014 which was pending in the Court of the District Judge-1 Kandhar, District Nanded.
::: Downloaded on - 22/06/2014 23:29:09 ::: 2 SA No.338 of 2014The application was filed by the present appellant for condonation of delay caused in filing appeal against the judgment and decree of Regular Civil Suit No.5/1985 which was pending in the Court of the Civil Judge, Junior Division, Mukhed, District Nanded. Both the sides are heard.
2) It is the case of the appellants that applicant No.1-1 is an old lady and she used to remain sick due to blood pressure and diabetes. It is contended that due to physical condition of applicant No.1-1, appeal could not be filed in time and the delay was not caused intentionally.
There was delay of 9 months and 21 days.
3) The suit was filed by respondent No.1 against present appellants and also against respondent Nos.2 and 3 for relief of possession of house property on the basis of title. The application for condonation of delay was opposed by respondent No.1-A and 1-B by contending that no sufficient cause is shown. It was contended by these respondents that Regular Civil Suit No.5/1985 was taken upto Supreme Court only on the point of valuation and due to delaying tactics played by defendants the suit came ::: Downloaded on - 22/06/2014 23:29:09 ::: 3 SA No.338 of 2014 be decided after 30 years. It is contended that further delay was caused in filing appeal by the applicants as they wanted to protract the things.
4) Two medical certificates issued in favour of applicant No.1-1 were produced and they are considered by the First Appellate Court. This record shows that applicant No.1-1 was receiving treatment for blood pressure and diabetes. However, the record does not show that the applicant was bed-ridden or she was admitted in the hospital. In these circumstances, the District Court held that applicant No.1-1 has not proved that she was totally unable to come to the Court to file appeal or to take steps for filing appeal. Further circumstance that other applicants could have taken steps for filing appeal but they did not take steps is considered by the District Court. No explanation is given in that regard by the applicant Nos.1-2 to 1-6. The District Court has considered circumstances that when the suit was decided on 17-4-2013, application for certified copy was made on 16-8-2013, certified copy was obtained on 20-8-2013 and the appeal came to be filed on 10-3-2014. In view of these ::: Downloaded on - 22/06/2014 23:29:09 ::: 4 SA No.338 of 2014 circumstances, the First Appellate Court has held that sufficient cause is not made out.
5) In Second Appeal No.198 of 2013 this Court had occasion to consider and re-state the law developed on section 5 of the Limitation Act. The observations made by this Court are as under :-
"11) Section 5 of the Limitation Act runs as under :-
"5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertain or computing the prescribed period may be sufficient cause within the meaning of this section."
12) In Section 5 at two places the word "may" is used. This shows that the Court has discretionary power in this regard. Section 5 further shows that the party seeking extension of prescribed period is required to satisfy the Court that he had sufficient ::: Downloaded on - 22/06/2014 23:29:09 ::: 5 SA No.338 of 2014 cause for not preferring the appeal/application and that arose within such period and continued thereafter. Thus, existence of sufficient cause is a condition for use of discretion by the Court.
13) In the case reported as AIR 1962 SC 361 (V 49 C 56) (Ramlal v. Rewa Coalfields Ltd.), the Apex Court has laid down that in construing this section two important considerations should be followed viz (a) that the expiration of the period of limitation prescribed for an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between parties and this right, which has accrued to the decree holder by lapse of time should not be lightly disturbed; and, (b) that if sufficient cause for causing delay is shown, discretion is given to the Court to condone the delay and admit the appeal. This discretion has been conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
14) The provision of section 5 and the observations made by the Apex Court show that there are two considerations in section 5 of the Limitation Act. The provision needs to be considered from both the angles mentioned by the Apex Court. So far as the construction of expression "sufficient cause" is concerned, the law is well settled. Section 5 does not require a "good cause" but requires "sufficient cause"
which is something more than good cause. The expression "sufficient cause" is not defined but it is ::: Downloaded on - 22/06/2014 23:29:10 ::: 6 SA No.338 of 2014 laid down by various Courts that it must mean a cause which is beyond the control of the party invoking the section. Any cause which prevents the parties approaching the Court within time is sufficient. Here only it needs to be observed that the cause must have arisen within prescribed time and the cause must have continued beyond that. In ascertaining cause, the test of reasonable man in normal circumstance needs to be applied. The burden in this regard rests on the party seeking condonation of delay. He needs to discharge it by adducing evidence.
15) The Apex Court has laid down that the purpose of provision is to advance substantial justice and so the Court using discretion must prima facie ascertain whether denying of relief would amount to frustrating meritorious case and denying substantial justice. As care needs to be taken in this regard, it can be said that the expression "sufficient cause" is widely elastic.
In one case, a ground may not be acceptable as sufficient ground for condonation of delay but the same ground in other case, in view of facts and circumstances of that case, may be a valid ground for condonation of delay. In one case if Court finds that the party seeking condonation has arguable case, there is prima facie merit in the matter, the Court may hold on the basis of explanation given by the party that sufficient cause is shown. In other case even when the ground is the same, if Court finds that condoning the delay would unnecessarily cause harassment to the other side, it will be defeating the ::: Downloaded on - 22/06/2014 23:29:10 ::: 7 SA No.338 of 2014 interests of justice, the party applying for condonation has no arguable case, the Court may refuse to condone the delay.
16) The provision of section 5 of the Act has given discretionary power to the Court and the party applying for condonation has no right as such. In a case the party applying for condonation of delay may be in a position to show "sufficient cause" and there may be a ground in that regard which cannot be disputed. However, in such a case also the Court has to exercise discretion judiciously and the exercise must be to advance substantial justice. The Court is expected to give reasons for refusing to condone the delay or for giving relief of condonation of delay. This needs to be done in systematic manner as observed above. The reasons must be on the grounds mentioned to make out sufficient cause and there must also be reasons on the point of prima facie merits of the case and bona fides. ..... .
17) As a general rule, the Appellate Court is not expected to interfere with the discretion exercised by the lower Court in allowing or rejecting the application for condonation of delay, unless it appears that the Court has not exercised at all the discretion or the Court has not exercised the power on aforesaid judicial principles. This Court is considering the matter in second appeal and this Court has no hesitation to observe that in second appeal such interference is possible only in exceptional cases."
::: Downloaded on - 22/06/2014 23:29:10 ::: 8 SA No.338 of 20146) If the aforesaid discussion is kept in mind it can be said that in the present matter no sufficient cause was made out. On the contrary, the facts have created probability that every attempt was made by the applicants to protract the things, to delay the execution and to defeat the claim of the plaintiffs. To ascertain as to whether there is some arguable case to the appellants in the first appeal, this Court has perused the record.
7) The suit was filed for possession on the basis of title. Admittedly the suit property was standing in the name of brother-in-law of the plaintiff though she was owner of the suit property. As per the record, there was litigation in the year 1955 in which the plaintiff of the present matter had contended that she was owner of the suit property and she had agreed to sell it to Madhav Gangaram. Name of Vithal Potalwad was entered in the property card of the suit property first time in the year 1974. It is the case of the defendant No.1 Vithal that he had purchased the property from defendant No.3. It is not his case that he had purchased the property from the plaintiff who was owner of the property. It is also not the ::: Downloaded on - 22/06/2014 23:29:10 ::: 9 SA No.338 of 2014 case that he had purchased the property from the brother in law of the plaintiff.. Thus there is no possibility of transfer of ownership of the property in favour of defendant No.1. When the title has no passed to anybody, there was no alternative before the Court than to give decree of possession in favour of the plaintiff. In view of the defence taken by the defendant No.1 no point of limitation was involved in the matter.
8) The aforesaid defence of the appellants shows that there is virtually no arguable case to the appellants in the first appeal. Similarly no case is made out like raising any substantial questions of law in the present matter.
Grating or refusing such application, for condonation of delay is within discretion of the Court and the District Court has considered relevant record and circumstances.
9) Thus, the present matter needs to be dismissed and it is accordingly dismissed. Civil Application stands disposed of.
::: Downloaded on - 22/06/2014 23:29:10 ::: 10 SA No.338 of 201410) Learned counsel for the appellants requests for grant of stay for few weeks. The aforesaid record and the circumstances show that granting stay of even one day would be denying the justice to the plaintiff who got decree after about 28 years of the date of the suit. So, this request is rejected.
Sd/-
ig (T.V. NALAWADE, J.)
rsl
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