Bombay High Court
Asaram Shivaji Patole (Died) Lrs Satish ... vs Brijmohan Harnarayan Ladda And Others on 18 June, 2018
Author: P.R.Bora
Bench: P.R.Bora
1 CA 14168/16 & Anr.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.14168 OF 2016
WITH
CIVIL APPLICATION NO.14771 OF 2016
IN
SECOND APPEAL NO.275 OF 1988
Asaram Shivaji Patole
(Died Through his
proposed legal Representatives)
1-A Satish Asaram Patole & Others
= APPLICANTS
VERSUS
Brijmohan s/o Harnarayan Ladda
& Others = RESPONDENTS
-----
Mr.S.J. Salunke, Advocate for Applicants;
Mr.M.V. Navandar, Advocate for Respondent No.1;
Mr.Vivek Deshmukh, Adv.for Respondent Nos.2 & 3.
-----
CORAM : P.R.BORA, J.
DATE: 18th June, 2018
COURT'S ORDER :
1) Heard learned Counsel for applicants in
both the aforesaid applications and learned
Counsel appearing for the respondents in both
these applications.
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2) Civil Application No.14168/2016 is filed
for restoration of Second Appeal No.275/1988,
which has been dismissed in default, vide order
passed by this Court on 16.4.2009. Delay caused
in filing the said application is also sought to
be condoned in the same application.
3) Civil Application No.14771/2016 is filed
for setting aside the abatement and for bringing
the legal heirs of deceased appellant Nos.1, 2, 3
and 5 on record. In the said application also,
delay is sought to be condoned which has
occasioned in filing the said application.
4) In both the aforesaid applications, it
is the common contention of the applicants that
they were not aware of order dated 16.4.2009
whereby the second appeal filed by them has been
dismissed in default. It is their further
contention that on 16.4.2009, the counsel
appearing for them, did not appear before the
court when the matter was called out and
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resultantly the appeal came to be dismissed for
non-prosecution. It is the further contention of
the applicants that the counsel appearing for
them did never inform them about the progress in
the second appeal or as about the order passed on
16th April, 2009. It is the further contention of
the applicants that they were bonafide believing
that their appeal was still pending. The
applicants have contended that on 30th December,
1988 interim stay has been granted in favour of
the applicants and the Second Appeal has been
admitted by the Court on 19th April, 1989.
5) It is the further contention of the
applicants that only when bailiff of the
Executing Court came to the suit property for
execution of the decree of recovery of possession
that the applicants came to know that their
second appeal has been dismissed. It is their
further contention that the applicants got
knowledge of the order dated 16th April, 2009 on
30th September, 2016 when they visited office of
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High Court and obtained information about the
second appeal. The applicants have further
contended that after getting knowledge of the
order dated 16th April, 2009, though they tried to
contact their previous counsel, contact could not
be established and hence they approached the
counsel, who is presently appearing for them and
then, on his advice, filed the present
applications.
6) As about the application filed for
setting aside the abatement, it is the contention
of the legal heirs of the deceased appellants
that they were not aware of the proceeding
pending before this Court and they came to know
about dismissal of the suit as well as about
abatement only after the decree was tried to be
executed by Respondent No.1 in the month of
August 2016.
7) It is the common contention in both the
aforesaid applications that the delay, which has
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occasioned in filing these applications, is for
bonafide reasons and unintentional. It was the
further contention of the learned counsel for the
applicants that the decree passed by the trial
court is as good as an 'ex-parte decree' since
the same has been passed without giving any
opportunity to the defendants to adduce their
evidence. The learned counsel further submitted
that though the original defendants filed an
appeal before the District Court, even in the
said appeal the objections raised by them were
not appropriately considered by the first
appellate court and the appeal was dismissed.
The learned Counsel submitted that the applicants
till today have not received any opportunity to
contest the suit against them on merits though
they are having ample material with them to show
that they were in possession of the suit property
even since prior to the alleged purchase of the
said property by Respondent No.1.
8) The learned counsel further submitted
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that since there is substance in the appeal, this
court has granted interim stay in favour of the
appellants and has protected their possession
over the suit property and has also admitted the
second appeal. For the reasons, as aforesaid,
the learned counsel prayed for allowing both the
applications by condoning the delay caused in
filing the said applications and to give an
opportunity to the appellants to agitate the
appeal on merits. The learned counsel concluded
his argument stating that if the appeal is
restored, without asking for any adjournment, he
will argue the appeal on the very first date
which may be fixed by the court.
9) Respondent No.1 has filed an affidavit
in reply opposing Civil Application No.
14168/2016. Relying upon the contentions raised
in the said reply affidavit and the documents
annexed there with, Shri Navandar, learned
counsel appearing for Respondent No.1, submitted
that the applicants have not explained the huge
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delay of more than seven years in filing the
application for restoration of the appeal. The
learned Counsel further contended that the
applicants have also not disclosed all the
necessary facts. It was the further contention
of the learned counsel that contradictory pleas
are raised by the applicants in both the
applications leading to an inference that the
applicants have not approached this court with
all true and correct information and with
bonafide reasons. The learned counsel further
submitted that both the applications lack
necessary particulars as about the knowledge
received to the applicants about progress in the
second appeal.
10) The learned Counsel further argued that
the material on record clearly reveals that the
abatement order was passed way back in the year
2006 and as such, the delay caused in filing the
applications for setting aside the abatement is
of the period of more than ten years and the same
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has not been properly explained. The learned
counsel submitted that the order of abatement
dated 11.10.2006 was passed in presence of the
learned counsel, who was at the relevant time,
appearing for all the appellants. In the
circumstances, according to the learned counsel,
it cannot be accepted that the surviving
appellants were not aware of the order of
abatement on 11.10.2006. The learned counsel
further submitted that even on merits, the
applicants do not have any case for causing
interference in the judgments and decrees passed
by the courts below.
11) Both the learned counsel have filed
documents in support of their respective
contentions.
12) I have given due consideration to the
submissions made on behalf of the learned counsel
appearing for the respective parties. I have
perused the impugned order as well as the other
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material placed on record by the parties.
13) It is not in dispute that Second Appeal
No.275/1988 was admitted by this Court on
19.4.1989. There is further no dispute that
prior to that, vide order passed on 30.12.1988,
this Court had granted the interim relief in
favour of the applicants and has thereby stayed
the execution of the decree of recovery of
possession impugned in the second appeal. The
material on record reveals that in the period
between admission of the second appeal and the
order of dismissal on 16.4.2009, original
appellants No.2, 3 and 5 died. Original
appellant No.2 viz. Rambhau Shivaji Patole died
on 8th Mach, 2000. Original appellant No.3, viz.
Bhaguji Punjaji Ghule died on 15th February, 2005;
whereas original appellant No.5 viz. Anna Shankar
Patole died on 11th March, 2002. The record
further reveals that appellant No.1, viz. Aasaram
Shivaji Patole died on 14.8.2013. It is thus
evident that only original appellant who is
presently surviving is appellant No.4, viz.
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Laxman Santrao Ghule.
14) Considering the dates of death of the
respective original appellants, it is quite
evident that in filing the application by their
respective legal heirs for setting aside the
abatement and for taking their names on record as
legal heirs of the original deceased appellants,
the delay caused is of 11 years; in so far as
original appellant No.3 is concerned; in respect
of the original appellant No.5 it is of about 14
years; whereas in respect of original appellant
No.1, it is of the period of three years. None
has come forward as the legal representatives of
deceased appellant No.2, viz. Rambhau, who is
said to have died on 8th March, 2000. The appeal
thus stands abated insofar as appellant no.2 is
concerned. Such an order is in fact already
passed.
15) The application for setting aside the
abatement has been filed on 24.10.2016; whereas
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the application No.14168/2016 for restoration of
the second appeal has been filed on 17.10.2016.
Both the applications also contain the prayer for
condonation of delay which has occurred in filing
the said applications. It is quite evident that
having regard to the date of deaths of the
respective appellants, the delay which has
occurred in filing the application for setting
aside the abatement, is huge, ranging from 3
years to 16 years. In so far as application for
restoration of the second appeal is concerned,
the delay of about seven years has occurred.
16) It is apparent that the delay so caused
in filing both the applications is enormous and
the applicants are bound to satisfy the court
with sufficient cause for condoning the said
delay. Going by the pleadings of the applicants
in both these applications, the reasons which are
revealing for occurrence of delay are as under, -
(i) In so far application for setting aside
the abatement is concerned, it is the
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contention of the legal heirs of the deceased
appellants that they were not even aware of
pendency of the second appeal and they come
to know about pendency of the said appeal as
well as dismissal of the said appeal for want
of prosecution only when the decree was
sought to be executed against them by the
respondents;
(ii) In the application for restoration of
the second appeal, it is contention of the
applicants that on 16.4.2009, the counsel,
who was representing them, did not remain
present when the second appeal was taken up
for hearing by the court and hence it was
dismissed for want of prosecution. It is the
further contention of the applicants that the
counsel, who was representing them in the
second appeal did never inform them about the
dismissal of the appeal and they come to know
about the said order only when the impugned
decree was sought to be executed by
Respondent No.1.
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17) The contentions, as aforesaid, raised by
the applicants in these applications are of
course denied by Respondent No.1. Respondent
No.1 had filed a detailed affidavit in reply in
CA no.14168/2016. In so far as contention of the
applicants that on 16.4.2009, the counsel who was
representing them in the second appeal before the
high court, did not remain present before the
court when the matter was taken up for hearing,
is explicit from the order itself.
18) The further contention of the applicants
that the counsel, who was representing them in
the second appeal before the high court, did
never communicate them about the dismissal of the
second appeal is not expressly denied by
Respondent No.1. What is contended by Respondent
No.1 in his affidavit in reply is the fact that
the applicants were throughout negligent in
prosecuting their matter and every time had put
the blame on the respective counsel who
represented them. It was the contention of the
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learned counsel for Respondent No.1 that the
litigant is expected to be diligent about the
progress in his matter and he cannot put entire
blame on his counsel.
19) The question arises whether the grounds
as are raised by the applicants, first that their
counsel did not inform them about the dismissal
of their second appeal and the other that they
came to know about the dismissal of their second
appeal only when the impugned decree was sought
to be executed by Respondent No.1. sometimes
after 17th August, 2016, can be believed or not
and whether the grounds so raised can be accepted
as 'sufficient cause' to condone the delay which
has occasioned
20) To attract the provisions of Section 5
of the Limitation Act, a suitor is under an
obligation to show that he had sufficient cause
for not preferring the application within the
period of limitation prescribed under the Act.
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The question of existence of sufficient cause has
to be decided on the basis of the facts and
circumstances of each case. As has been
consistently held by the Hon'ble Apex court, the
expression 'sufficient cause' is to receive
liberal construction so as to advance substantial
justice. When there is no negligence inaction or
want of bonafide is imputable to the appellants,
the delay has to be condoned. The discretion is
to be exercised like any other judicial
discretion with vigilance and circumspection. The
discretion is not to be exercised in any
arbitrary, vague or fanciful manner.
21) It is further well settled that in
dealing with the applications under section 5 of
the Limitation Act, the court should adopt a
justice oriented approach. It must be remembered
that in every case of delay there can be some
lapse on part of the litigant concerned. That
alone is not enough to turn down his plea and to
shut the doors against him. If the explanation
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does not smack of malafides or does not put forth
as part of dilatory strategy, the court must show
utmost consideration to the suitor, but when
there is a reasonable ground to think that the
delay was occasioned by the party deliberately to
gain time then, the court should lean against
acceptance of the explanation. In light of the
aforesaid settled principles, the contentions
raised by the applicants as well as by Respondent
No.1 will have to be examined.
22) In the instant matter, it is not in
dispute that the second appeal was admitted on
19.4.1989. It is further not in dispute that the
interim order was passed in the second appeal
whereby the possession of the appellants over the
subject property was protected. From the
material on record, it does not appear that the
delay in filing the restoration application or in
filing the application for setting aside the
abatement, has occurred for any malafide reason.
It also does not appear that the applicants have
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deliberately committed delay in filing these
applications. It need not be stated that a
litigant does not stand to benefit by resorting
to delay. In fact, he runs a serious risk. In
the present matter, even Respondent No.1 has not
brought on record any such material so as to
believe that in spite of having knowledge as
about the order of abatement passed against the
deceased appellant Nos. 2, 3 and 5 and as about
the eventual order of dismissal of second appeal
for want of prosecution, the applicants
deliberately did not file the present
applications. Though Respondent No.1 in his
affidavit in reply had denied and disputed the
contention of the applicants that they become
aware of the dismissal of the second appeal only
when the bailiff of the executing court visited
their premises for execution of the decree
against them, no such material is brought on
record to show that even prior to that, the
applicants were having knowledge of the dismissal
of their second appeal for want of prosecution
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and in spite of that, the applicants did not take
any step for getting restored the said appeal.
23) It was sought to be canvassed by learned
counsel for Respondent No.1 that Respondent No.1
had given a public notice giving complete details
regarding the suit property and the decisions
given by the respective courts of law and the
present status regarding the same, making aware
the public at large. On perusal of the said
public notice published in newspaper
'Parshvabhumi' in its issue dated 6th July, 2012
it is revealed that it nowhere discloses the fact
of dismissal of the second appeal No.275 of 1988
on 16.4.2009 for want of prosecution. On the
contrary, it is averred in the said public notice
that the respondents in RCA No.122/1982 have
preferred Second Appeal in the High court, Bench
at Aurangabad and the number of the said Second
Appeal is 275/1988. The averments, as above, can
only be interpreted to mean that second appeal
No.275/1988 was in existence on the date of
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publication of the said notice on 6th July, 2012.
24) Two inferences emerge after having
perused the contents of the public notice dated
6th July, 2012 published by Respondent No.1 in the
newspaper. First that Respondent No.1 himself
was not aware that the Second Appeal no. 275/1988
has been dismissed on 16.4.2009 for want of
prosecution and the other that with an
apprehension that if the said fact is disclosed,
the appellants may immediately approach the court
for restoration of the said second appeal,
Respondent No.1 deliberately did not disclose the
said fact in spite of having knowledge of the
said fact.
25) As noted herein above, the alleged
possession of the appellants over the suit
property was protected by way of interim order
passed by the high Court on 30th August, 1988.
Even if it is assumed that, the legal heirs of
original appellant Nos. 2, 3 and 5 were not aware
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of any such order and even about pendency of the
second appeal, on 16.4.2009, appellant Nos. 1 and
4 were very well alive and had they earlier come
to know about dismissal of their appeal for want
of prosecution, it does not appear to me that
they would not have taken the necessary steps for
getting restored the appeal.
25) It is further not understood as to why
Respondent No.1 also waited for execution of the
decree of possession against the appellants till
the year 2016 when the second appeal was
dismissed in the year 2009. It was not at all in
the interest of the applicants to remain silent
even on receiving the knowledge that their appeal
has been dismissed since it was the question of
their survival. Not to contest the appeal was
thus fatal for them. In the circumspection, the
contention of the respondent No.1 that in spite
of being aware of the dismissal of their second
appeal, the applicants did not take any timely
action is difficult to be accepted. I reiterate
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that except bare allegation as above, no such
material has been brought on record by Respondent
No.1 so as to believe that the applicants were
having knowledge about dismissal of their second
appeal even prior to the date they claimed to
have got knowledge of the said fact.
26) The Hon'ble Apex court in series of
judgments has ruled that the expression
'sufficient cause' is to receive liberal
construction so as to advance substantial
justice. The primary function of the court is
also to adjudicate the dispute between the
parties and to advance substantial justice.
Unless there is absolute negligence on part of a
party, ordinarily, the delay in filing the appeal
or application is to be condoned.
27) In the instant matter, though it is
difficult to deny that the applicants have not
shown the required diligence in prosecuting their
second appeal, negligence or inaction on part of
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the applicants does not smack with any malafide.
It cannot be lost sight of that the applicants
belong to the poor strata of society. In absence
of any contrary evidence it has to be believed
that they are the labourers as claimed by them.
For not showing due diligence they can be
penalized by saddling certain costs upon them,
but their right to agitate their appeal on merits
cannot be destroyed or taken away. The phrase
'sufficient case' is adequately elastic to enable
the court to apply the law in meaningful manner.
28) It was vehemently argued by the learned
counsel for Respondent No.1 that while
considering the submissions advanced by the
applicants the court cannot lose sight of the
fact that Respondent No.1 is diligently fighting
for his right since 1978 and though the first
decree was passed in his favour in the year 1981,
which was confirmed by the first appellate court
in the year 1988, he has not yet given to enjoy
the fruits of the said decree.
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29) Although, while dealing with the delay
condonation matter, normally the court is not
supposed to address the merit of the case, if the
circumstances so warrant the merit of the case
cannot be brushed aside and it is not
impermissible in such cases to look into the
merit of the matter. Viewed with this angle when
I perused the judgment and decree passed by the
trial court in RCS No.98/1978, it is apparently
revealed that there is substance in the objection
raised by the applicants, i.e. original
defendants that the trial court passed the
impugned decree without following due process of
law and without giving any proper opportunity of
hearing to the defendants therein. It is
revealed that on the day the evidence of the
plaintiff was recorded in the said suit, the
counsel for defendants passed 'no instructions'
pursis and without following further process in
such situation, the trial court passed the decree
in favour of the plaintiffs therein on the same
day. As has been argued by the learned counsel
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for the applicants, even the first appellate
court did not consider that the defendants were
not given any opportunity of adducing their
evidence and the decree was passed on the day the
plaintiff closed his evidence. The objection so
raised by the applicants, in my opinion, deserves
consideration. At this juncture though I may not
be entering into the merits of the case, prima
facie, I am of the opinion that the objections in
that regard by the applicants, i.e. original
defendants, deserve consideration. There is
reason to believe that possibly for this reason
this Court has granted the interim relief in
favour of the applicants and has protected their
possession over the suit property by admitting
the appeal.
30) The learned Counsel for the respondents
had relied upon the Judgment of the Hon'ble Apex
Court in the case of Brijesh Kumar and Ors. v.
State of haryana and Ors. - AIR 2014 SC 1612 as
also in the case of Balwant Singh (Dead) vs.
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Jagdish Singh and Others - AIR 2010 SC 3043 as
well as the Judgment delivered by learned Single
Judge of this Court in CRA No.164 of 2013
(Nandkishor Wadgaonkar & anr. vs. Gajanan Pede.
In the case of Brijesh Kumar), the Hon'ble Apex
Court has ruled that, "the courts should not
adopt an injustice-oriented approach in rejecting
the application for condonation of delay.
However the Court while allowing such application
has to draw a distinction between delay and
inordinate delay for want of bonafides of an
inaction or negligence." In the instant matter,
it is true that the inordinate delay has been
caused however, I have elaborately discussed
herein above that the delay caused does not smack
malafide or any deliberate intention.
31) The Judgment delivered by the learned
Single Judge of this Court in the case of
Nandkishor Wadgaonkar & anr. vs. Gajanan Pede
(cited supra) may not apply to the facts of the
present case. The Judgment in the case of
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Balwant Singh (cited supra), in fact, to some
extent, supports the case of the applicants. In
paragraph 15 of the said Judgment the Court has
reproduced the principles laid down by the
Hon'ble Apex Court in its previous Judgment in
the case of Perumon Bhagvathy Devaswom, Perinadu
village Vs. Bhargavi Amma (Dead) by Lrs. And
Others, (2008) 8 SCC 321. I deem it appropriate
to reproduce herein below clause (v) thereof.
(v) "Want of "diligence" or
"inaction" can be attributed to an
appellant only when something
required to be done by him, is not
done. When nothing is required to
be done, courts do not expect the
appellant to be diligent. Where an
appeal is admitted by the High Court
and is not expected to be listed for
final hearing for a few years, an
appellant is not expected to visit
the court or his lawyer every few
weeks to ascertain the position nor
keep checking whether the contesting
respondent is alive. He merely
awaits the call or information from
his counsel about the listing of the
appeal."
As I stated earlier, similar plea is raised by
the applicants in the present matter and
for the reasons I have elaborately recorded,
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I am inclined to accept the same.
33) After having considered the entire
material on record, I have reached to the
conclusion that sufficient cause is shown by the
applicants in justification of the delay which
has occasioned in filing these applications. As
observed by me earlier, the delay which has
occurred in initiating the further actions does
not smack malafide and cannot be said to be
deliberate. In the circumstances, the appellants
cannot be denied the opportunity to agitate their
appeal on merits. In the circumstances, I am
inclined to allow both the applications, of
course, by saddling adequate costs upon the
applicants. Hence, the following order, -
ORDER
i) The abatement caused because of deaths of appellant Nos.1, 3 and 5, stands set aside. Legal heirs of the aforesaid deceased appellants, as are mentioned in CA No.14771/2016, be taken on record. Amendment be carried out within a week. Delay caused in filing ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 02:01:50 ::: 28 CA 14168/16 & Anr.
this application is condoned.
ii) Order dated 16.4.2009 stands quashed and set aside. Second Appeal No.275/1988 stands restored to its original position. Delay caused in filing CA No.14168/2016 is condoned.
iii) The applicants, i.e. original appellant No.4 and legal heirs of deceased appellant Nos. 1, 3 and 5, shall pay costs of Rs.5,000/- (Rupees five thousand) each, totalling to Rs.20,000/- to Respondent No.1 before the next date fixed for final hearing of the second appeal;
iv) CA No.14771/2016 and CA No. 14168/2016 are disposed of in aforesaid terms;
v) List the Second Appeal for final disposal on 3rd July, 2018 (P.R.BORA) JUDGE bdv/ fldr14.6.18 ::: Uploaded on - 18/06/2018 ::: Downloaded on - 19/06/2018 02:01:50 :::