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2010 DIGILAW 813 (BOM)

Amar Singh s/o Harisingh Thakur v. Tulshiram s/o Shri Kisan Ingle

2010-06-16

A.P.BHANGALE

body2010
Judgment :- By means of this Second Appeal, the appellant is praying for quashing and setting aside the order dated 28.1.2008 passed in Miscellaneous Civil Application (MCA) No.207/2007 passed by learned Ad-hoc District Judge-3, Nagpur. 2. Perused the impugned order whereby the learned Judge of the Court below was pleased to reject the application for condonation of delay. 3. The facts briefly mentioned are that, the appellant herein had filed a suit for specific performance of contract which was entered on 21.1.1997 and 17.11.2004 for purchasing the land admeasuring 3.24 acres. The suit was filed on 15.5.2006. In that suit, the respondent nos. 2 and 3 moved an application for intervention claiming that Respondent No.2 purchased half portion of the land from wife of Respondent No.1 during her lifetime through the power of attorney holder of wife of Respondent No.1 (from Respondent No.3 herein). The reference was made to previous litigation i.e. Special Civil Suit No. 569/2004. In that application concerning the land in question as also counter claim which was made by respondent nos. 2 and 3 against the decree which was passed in Spl.Civil Suit No. 569/2004, the respondent no. 1 had claimed adversely to the right of the respondent no.2; but on 26.10.2005 the appeal was withdrawn clandestinely by respondent no.1. Thus, relying upon the judgment passed in Spl.Civil Suit No. 569/2004 the respondent nos. 2 and 3 moved an application for intervention claiming that the said judgment had attained finality. 4. The appellant who was aggrieved by the said judgment and decree passed in Spl.Civil Suit No. 569/2004, preferred an application seeking permission of the Court to file appeal along with an application for condonation of delay, so as to challenge the judgment and order (which was passed in Spl.Civil Suit No. 569/2004). However by the impugned order dated 28.1.2008, the learned Judge of the Court below was pleased to reject the MCA No.207/2007 and consequently the prayer for condonation of delay. The appellant had also preferred Writ Petition in order to challenge the impugned order. However, the appellant chose to withdrawn the Writ Petition in view of the remedy available to file Second Appeal challenging the said order. 5. The appellant had also preferred Writ Petition in order to challenge the impugned order. However, the appellant chose to withdrawn the Writ Petition in view of the remedy available to file Second Appeal challenging the said order. 5. The appellant raised substantial question of law, firstly , as to whether the learned Judge was right in adopting a technical approach while rejecting application for condonation of delay and secondly, whether the course adopted by the learned Judge of the Court below was was in accordance with law laid down by this Court in case of Holya Lasha Mahale and another vs. Raghunath Holya Mahale reported in 2007 (1) Bom.C.R. 506 : 2006 (5) Mh.L.J. 80 ). 6. Heard admissions at the Bar and also perused the impugned order in the light of the questions of law raised above. 7. It does appear that the appellant came to know about the previous litigation i.e. SCS No. 569/2004 while the said suit was referred to in the judgment, by the respondents during pendency of the suit for specific performance of contract, filed on 15.5.2006. It is not disputed before me that the delay condonation application was rejected by learned Ad-hoc District Judge-3 Nagpur vide order below MCA No. 207/2007 without recording evidence of the parties or without calling upon parties to file their affidavits. Learned counsel for the appellant made a reference to Holya Mahale's case (supra) and submitted that in view of O.XIX R.1 of the Civil Procedure Code, any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable; provided that where it appears to the Court either party bona fide desires production of witness for cross-examination, and that such witness can be produced for cross-examination, an order shall not be made authorising the evidence of such witness to be given by affidavit. This Court in paragraph 6 of Holya Mahale's case (supra) observed as below : “6. This Court in paragraph 6 of Holya Mahale's case (supra) observed as below : “6. Thus, the Court can read the evidence led by way of the affidavit after having recorded the sufficient reasons for accepting such affidavits and, if no such order is passed by the Court, the Court is under obligation to follow the regular procedure of recording the evidence by way of examination-in-chief and cross-examination. In the present matter, it is further noticed that none of the parties have filed pursis informing the Court that the evidence is closed by either side. Thus, it is transpired that the matter is disposed of simply on the basis of the pleadings of the parties without recording of evidence in the Court and/ or obtaining evidence as per order IXI Rule 1 of the Civil Procedure Code, 1908. In the absence of pursis of the parties that they do not intend to lead evidence and/ or they have closed evidence, it was inappropriate on the part of the First Appellate Court to dispose of the matter on the basis of the pleadings of the parties simpliciter. Therefore, on this aspect of the matter, the order passed by the First Appellate Court suffers from a procedural drawback and requires to be set aside. It is accordingly set aside.” Thus, this Court was pleased to remand the case to the first Appellate Court by setting aside the delay condonation application after recording evidence of the parties in the Court /or by way of affidavit after passing an order under O.XIX R. 1 of CPC. 8. Learned counsel for the appellant also submitted that in the matter of condonation of delay, the Courts are required to adopt a liberal approach as per the guidelines mentioned in Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others reported in AIR 1987 SC 1353 . In Para no.5 of the said judgment, the Hon'ble Supreme Court has laid down the following five principles:- “(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. (4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.” It appears that this ruling was also followed in Sonerao S. Patil vs. Godavaribai : 1999 (2) Mh.L.J. Page 272. 9. Per contra, learned counsel for respondents 2 & 3 submitted that each day's delay is required to be explained. He submitted that in the facts and circumstances the impugned order was correctly passed and he prayed for dismissal of the appeal. 10. I have considered the submissions as also citations relied upon and the principles mentioned above. In my view, in view of O.XIX R.1 CPC and in view of the observations made in Holya Mahale's case (supra), it was necessary for the learned Ad-hoc District Judge-3 Nagpur to call upon the parties to file affidavit or, at least, to record their oral evidence instead of adopting a pedantic approach of refusing to condone delay in the facts and circumstances of the case. Therefore, the question nos. 1 and 2 posed above must be answered in the negative. The learned Ad-hoc District Judge-3 Nagpur can decide the application on the basis of affidavit filed or, on the basis of oral evidence adduced by the parties, which is required to be recorded in order to pass final order below application for condonation of delay so as to ensure its just and final disposal in accordance with law, in the facts and circumstances of the present case. Hence the following order : The Second appeal is allowed. Hence the following order : The Second appeal is allowed. The impugned order dated 28.1.2008 passed by learned Ad-hoc District Judge-3, Nagpur is hereby set aside. Misc. Civil Application No.207/2007 is remanded to the Court of District Judge Nagpur for final disposal in accordance with law, bearing in mind the observations made above. Respective parties to cooperate with learned Judge of the Court below for early disposal of the Application. Second Appeal is disposed of accordingly.