Mahatma Fule Shikshan Samiti, Amravati v. Ashalata Vijayrao Tarar
2005-08-26
D.G.KARNIK
body2005
DigiLaw.ai
( 1 ) HEARD, the learned counsel for the appellants and the respondent No. 1. This appeal is directed against the order dated 27th June, 2003 passed by the Joint charity Commissioner, Amaravati Region, amaravati. ( 2 ) THE appellants had previously challenged the impugned order before the Joint district Judge by filing an application bearing misc. Civil Application No. 158/2003 under section 72 (4) of the Bombay Public Trusts Act, 1950. The District Court held that the application was not maintainable and by an order dated 19th November, 2004 directed that the application be returned to the appellant for presentation to the proper court. Instead of presenting the said application/appeal memo to this Court, the appellants have preferred to challenge the order passed by the Joint Charity commissioner on 27th June, 2003 as well as the order of the District Court dated 19-11-2004 by filing this appeal. ( 3 ) THE appeal first came up for hearing before this court on 14th July, 2005, when the learned counsel for the respondent urged that the appeal was not maintainable, and in event barred by limitation. Thereupon the appellants advocate sought time to amend the appeal memo and also to prefer an application for condonation of delay. Today, a pursis has been filed by the appellants praying for deletion of Prayer Clause a (i) which seeks to challenge the order passed by the District Court in Miscellaneous Civil Appeal No. 158/2003. Learned Counsel for the appellants also submits that the appellants have given up the challenge to the order dated 19th November, 2004 passed by the learned District Judge in miscellaneous Civil Application No. 158 of 2003 and only seeks to challenge the order passed by the Joint Charity Commissioner on 27th June, 2003. Learned counsel for the appellants further states that this appeal should be treated as an appeal under Section 47 (5) of the Bombay Public Trusts Act (for short "b. P. T. Act" ). In view of the above, the appeal is treated as an appeal under Section 47 (5) against the order dated 27th June, 2003. ( 4 ) LEARNED counsel for the respondent No. 1 submits that the appeal is barred by limitation. The period of filing an appeal to the High Court is of 90 days.
In view of the above, the appeal is treated as an appeal under Section 47 (5) against the order dated 27th June, 2003. ( 4 ) LEARNED counsel for the respondent No. 1 submits that the appeal is barred by limitation. The period of filing an appeal to the High Court is of 90 days. The impugned order was passed on 27th June, 2003 and the present appeal has been filed on 10th december, 2004. The appeal which is filed after a lapse of nearly 15 months from the date of order, is clearly barred by limitation. Learned counsel for the respondent No. 1 submits that under Section 14 (1) of the limitation Act time spent by the appellants in challenging the impugned order before the district Court needs to be excluded while computing the period of limitation. Section 14 (1) prescribes that in computing period of limitation for any suit, the time during which the plaintiff had been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of an appeal or revision, against the defendant should be excluded. Section 14 (1) applies only while computing period of limitation for filing of a suit and does not apply while computing period of limitation for filing of an appeal. Since this is the appeal under Section 47 (5) of the B. P. T. Act. Section 14 (1) of the Limitation Act does not, in terms apply. In my view, even if Section 14 (1) of the Limitation Act is not specifically applicable, it is possible for the appellate Court to take into consideration the time spent bonafide in prosecuting other civil proceeding in any other Court by the applicant and condone the delay under Section 5 of the limitation Act. It is precisely for this reason that by an order dated 14th July, 2005, this court had permitted the appellant to apply for condonation of delay. The appellants could have applied for condonation of delay on the ground that he was bonafide pursuing the remedy before the District Court. However, despite the opportunity given to the appellant to amend the appeal memo and to file an application for condonation of delay, he has not applied for condonation of delay.
The appellants could have applied for condonation of delay on the ground that he was bonafide pursuing the remedy before the District Court. However, despite the opportunity given to the appellant to amend the appeal memo and to file an application for condonation of delay, he has not applied for condonation of delay. Even at this stage learned counsel for the appellants submits that the appellants only wish to rely upon Section 14 (1) as of a right and do not wish to pray for condonation of delay under section 5 of the Limitation Act. In absence of any formal prayer or even a request for condonation of delay, the delay cannot be condoned. As the appeal is barred by limitation and as there is no prayer or even a request for condonation of delay, the appeal is dismissed, as barred by limitation. Appeal dismissed.