Madhya Pradesh High Court
Smt. Alka Bhutda vs Deepak Bhanot on 19 December, 2017
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
F.A. No.15/2017
(Smt. Alka Bhutda vs. Deepak Bhanot & Anr.)
Indore, Dated: 19.12.2017
Shri A.S. Garg, learned senior counsel with Shri G.S. Yadav,
Advocate for the appellant.
Shri D.S. Kale, learned counsel for respondent No.1.
Shri Anuj Bhargava, learned counsel for respondent No.2. Heard on I.A. No.5611/2017, an application for transposition of respondent No.2 as appellant No.2.
The facts necessary for disposal of this application in nutshell are that by the impugned judgment and decree, the trial Court has decreed suit for specific performance to the effect that respondent No.2 shall execute sale deed of the suit property in favour of respondent No.1 and the sale deed executed by him in favour of appellant has been set aside.
The respondent No.2 has chosen not to file an appeal. The appeal was filed on 06.01.2017. Despite service of notice of appeal, respondent No.2 did not choose to file cross-objection under Order 41 Rule 22 within the prescribed period.
Now, the aforesaid I.A., filed on 05.09.2017, leave is sought for transposition.
The application has been opposed by respondent No.1 by filing reply thereto. The appellant, however, does not oppose the application.
Learned counsel for respondent No.2 by referring to the provision under Order 1 Rule 10(2) read with Order 41 Rule 33 of HIGH COURT OF MADHYA PRADESH BENCH AT INDORE CPC contends that this Court as an appellate Court has all the powers of the original Court and has wide discretion to add or delete parties to the appeal, at any stage of the suit, to do complete justice between the parties. Besides, appellate Court may pass such decree or order as the case may require notwithstanding the fact that appeal is filed only against a part of a decree. Besides, this Court may also exercise appellate power to grant relief in favour of such respondent or parties, though, such respondent or parties may not have filed the appeal or vice versa. Learned counsel also refers to the provision of Section 146 CPC to bolster his submission.
Per contra, Shri D.S. Kale, learned counsel for respondent No.1 combats the aforesaid preposition with the contention that provisions of Order 1 Rule 10 read with Order 41 Rule 33 CPC and Section 146 do not suggest that a party to a suit having suffered a decree if chose not to prefer an appeal and/or file cross-objection to the appeal preferred by co-defendant cannot take shelter of aforesaid provisions after running out the period of limitation to file appeal/cross- objection, for the purposes of transposition as an appellant. He has submitted what is not done directly cannot be permitted to be done indirectly. Learned counsel further submits that limitation prescribed for filing of an appeal under Article 116 of the Limitation Act is 90 days and to file cross-objection within 30 days under Order 41 Rule 22 of CPC from the date of receipt of notice of the appeal. Upon HIGH COURT OF MADHYA PRADESH BENCH AT INDORE conscious failure to avail the remedy within time period, a substantive right has accrued to respondent No.2, as there is no explanation, much less, plausible explanation in the application for not filing the appeal or cross-objection in the instant appeal.
Heard, counsel for the parties.
It is settled principle that procedural laws are handmaid laws and not the mistress of judicial process. However, procedural laws though predominantly discretionary in nature, nevertheless, are required to be applied in a given factual matrix judiciously regard being had to the concept of justice, equity and good conscience.
The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by the Hon'ble Supreme Court Court in the case of Balwant Singh Vs. Jagdish Singh, (2010) 8 SCC 685, as follows:-
"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the HIGH COURT OF MADHYA PRADESH BENCH AT INDORE mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
In the obtaining facts and circumstances, reliance on Order 1 Rule 10 of CPC read with Order 41 Rule 33 CPC justifying filing of the instant application, in the opinion of this Court, is misplaced and the said provision cannot be pressed into service, if person otherwise competent to invoke appellate jurisdiction either by filing appeal or cross objection if he had chosen to sit tight over the matter. Despite having suffered decree, a co-defendant at belated stage cannot seek transposition as an appellant. True it is that appellate Court has ample powers to pass such judgment and decrees against the parties to the suit to do complete justice between parties, but such power is not omnipresent and shall not cover all contingencies under the sky. More so, if exercise of such powers; akin to inherent power, is perceived in the instant case, it shall be in conflict with substantive right of a party accrued by efflux of period under law of limitation, as this Court finds substantial force in the submission advanced by Shri Kale, learned counsel for respondent No.1 that after expiry of period of limitation prescribed for filing appeal and cross objection, such an application under Order 1 Rule 10 CPC for transposition by passage HIGH COURT OF MADHYA PRADESH BENCH AT INDORE of time cannot be permitted as the same shall seriously jeopardize the right accrued to respondent No.1. Learned counsel for respondent No.1 placed reliance on the judgment of Supreme Court in the case of Mukesh Kumar and Ors. vs. Col. Harbans waraich and Ors. reported in 1991 9 SCC 380. In the opinion of this Court, the judgment is of no assistance to respondent No.1 though the principle of law underlined judgment is beyond any cavil of doubt. Consequently, the I.A. No.5611/2017 is rejected.
(Rohit Arya) Judge Digitally signed by Kafeel Ahmed Ansari Kafeel Ahmed DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, Ansari 2.5.4.20=08345dcd49ce70b9482a0cdd0963669f 80e64e3c96adeca6531dd3cb6f8f91fd, cn=Kafeel Ahmed Ansari Date: 2017.12.22 16:17:22 +05'30'