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2011 DIGILAW 759 (BOM)

Ana Vitoria Vieira Dalgado Lobo v. Geraldo Lobo

2011-07-02

A.P.LAVANDE

body2011
JUDGMENT Heard learned Counsel for the parties. Rule. Learned Counsel appearing for the respondents, waive notices. By consent of the learned Counsel, heard forthwith. 2. By this revision application, the petitioners take exception to the order dated 5th February, 2007 passed by Ad hoc District Judge, 2 at Panaji in Civil Miscellaneous Application No.64/2005 by which the application seeking condonation of delay of 3 years and 3 months in filing appeal against the preliminary decree dated 14th September, 2001 has been allowed. By the said order, the lower appellate Court has also granted stay of the decree passed by the trial Court. 3. Briefly, the facts leading to filing of the present revision application are as under : The petitioners herein filed Special Civil Suit No.239/1981 in the Court of Civil Judge, Junior Division, Mapusa against 14 defendants. The record discloses that for quite some time the defendants in the suit were not served. Somewhere in December, 1999, defendant/ respondent no.1(a) was served at the address of her husband Mr. Jeronimo Zuzarte and it is the case of respondent no.1(a) that her marriage with her husband was dissolved by the decree dated 15th June, 1991 and thereafter, she had got married with one Jao Baptista D'Souza on 17th October, 1996 and as such she could not and was not served at the address of her husband from whom she had already obtained divorce. Thereafter, the matter was transferred to Court of First Additional Civil Judge, Junior Division, Mapusa, who issued notice to parties/ advocates returnable on 30th March, 2001. The record discloses that the legal representatives of defendant no.1, who had expired were brought on record even before they were served and on 14th September, 2001, the trial Court passed preliminary decree for partition of the suit property. Thereafter, the trial Court appointed one Laxman Dessai Commissioner for partitioning the property by metes and bounds in terms of the decree, who submitted report on 12th November, 2001 and thereafter an application was moved on behalf of the plaintiffs' attorney that the property be sold in public auction. In the roznama dated 10th April, 2002, it was mentioned that summons to defendant nos.1(a) to 1(d) and some other defendants were returned unserved and the matter was adjourned for taking necessary steps by plaintiffs. On 9th December, 2002, the legal representatives of defendant no.1 were ordered to be served by publication. In the roznama dated 10th April, 2002, it was mentioned that summons to defendant nos.1(a) to 1(d) and some other defendants were returned unserved and the matter was adjourned for taking necessary steps by plaintiffs. On 9th December, 2002, the legal representatives of defendant no.1 were ordered to be served by publication. On 3rd February, 2003, the legal representatives were declared to be duly served by publication and it was ordered that the suit would proceed ex-parte against them. On 17th March, 2003, Advocate Nasnolkar filed vakalatnama on behalf of the defendant no.1(a) and thereafter, the matter was adjourned on behalf of defendant no.1(a), who is respondent no.1(a) in this petition. Thereafter, the matter was adjourned from time to time. 4. On 7th December, 2004 Writ Petition No.566/2004 was filed on behalf of the legal representative no. 1(c) of defendant no.1 in this Court against the order dated 16th October, 2004 passed by the trial Court dismissing the application seeking dismissal of the suit for want of jurisdiction. This Court by order dated 27th January, 2005 held that Writ Petition was not maintainable and preliminary decree ought to have been challenged by filing an appeal against the same and no application could have been filed before the trial Court itself challenging the validity of the preliminary decree. It is the case of defendant no.1(a) that thereafter she obtained certified copy of the judgment and decree and she was advised to file First Appeal against the said decree since First Appeal was maintainable against the preliminary decree. It is further the case of the applicant that she was unaware of the appropriate remedy to be adopted and she bonafidely relied upon the advice given by the advocate whose services she had engaged, from whom she did not get proper advice. At no point of time, her advocate advised her either to file an application for setting aside ex-parte decree or to file an appeal against the preliminary decree. She realised about the correct remedy only after Writ Petition No.566/2004 was dismissed by this Court and thereafter she engaged the services of an advocate, who advised her to file First Appeal along with an application for condonation of delay. 5. She realised about the correct remedy only after Writ Petition No.566/2004 was dismissed by this Court and thereafter she engaged the services of an advocate, who advised her to file First Appeal along with an application for condonation of delay. 5. It is further the case of defendant no.1 that for quite some time her family had to go through severe trauma on account of certain events which disrupted the peace of the family. Her paternal uncle who was the original defendant no.3 had expired in December, 2001 which was followed by the death of defendant no.4 in January, 2003 and thereafter in the same year, the son of original defendant no.4 Teddy Lobo expired. The mother of defendant no.1(a) who was suffering from heart ailments and asthmatic problems died on 8th April, 2004. On these facts defendant no.1 sought condonation of delay of over 3 years 3 months in filing appeal from the preliminary decree. 6. The application seeking condonation of delay was opposed on behalf of respondent no.6 and respondent nos.2, 4 and 5 by filing separate replies. Along with an application for condonation of delay, an application for stay of the impugned decree was also made. By the impugned order, the lower appellate Court condoned the delay subject to payment of costs of Rs.5,000/-. The lower appellate Court granted stay of the decree upon the application furnishing bank guarantee to the tune of Rs.25,000/- as a security for the due performance of the decree in case the appeal is dismissed. 7. The petitioners herein initially filed Writ Petition No.60/2008 challenging the impugned order. But thereafter, sought leave to convert Writ Petition into Revision Application since the appropriate remedy against the impugned order was by way of Revision Application and not Writ Petition and filed an application seeking condonation of delay for conversion of Writ Petition into Revision Application. Learned Counsel for the respondent gave no objection for the same and consequently, the delay was condoned and conversion was allowed. 8. Mr. Coelho Pereira, learned Senior Counsel appearing for the petitioners submitted that the lower appellate Court has exercised the jurisdiction illegally in condoning the delay of over 3 years in filing an appeal against the decree. Learned Counsel for the respondent gave no objection for the same and consequently, the delay was condoned and conversion was allowed. 8. Mr. Coelho Pereira, learned Senior Counsel appearing for the petitioners submitted that the lower appellate Court has exercised the jurisdiction illegally in condoning the delay of over 3 years in filing an appeal against the decree. According to learned Counsel, no ground exists for condoning the delay and one of the grounds taken by the appellants before the lower appellate Court is regarding non-service of summons in the suit which is a ground on merits in the appeal and as such, could not have been considered by the lower appellate Court. Learned Counsel further submitted that there is absolutely no justification for the delay caused in filing the appeal from the date of decree i.e. 14th September, 2001 and appellant before the lower appellate Court was represented by an advocate and as such, the lower appellate Court has erred in holding that there was sufficient cause for condoning the delay. According to learned Counsel, the actual delay in filing the appeal is 3 years 4 months and 19 days which has not been sufficiently explained by the appellants before the lower appellate Court and as such, the impugned order condoning the delay is patently unsustainable in law and as such deserves to be quashed and set aside. In support of his submissions, Mr. Pereira, relied upon the following judgments : (i) Oriental Aroma Chemical Industries limited Versus gujarat Industrial Development corporation and another; (2010)5 SCC 459 . (ii) BalwantSingh (Dead) Vs. Jagdish Singh and others; (2010)8 SCC 685 . (iii) Victor Albuquerque Vs. Saraswat Co-operative Bank Ltd.; 1998(1) GLT 332 (iv) Commissioner, Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and another; (2009)3 SCC 525 9. Per contra, Mr. Lotlikar, learned Senior Counsel appearing for respondent no.1(a) supported the impugned order and submitted that no case has been made out for interference with the impugned order in as much as the lower appellate Court has passed a reasoned order after meticulously going through the entire record including the roznamas of the trial Court in the suit. Per contra, Mr. Lotlikar, learned Senior Counsel appearing for respondent no.1(a) supported the impugned order and submitted that no case has been made out for interference with the impugned order in as much as the lower appellate Court has passed a reasoned order after meticulously going through the entire record including the roznamas of the trial Court in the suit. He further submitted that defendant no.1(a) was not served prior to passing of the decree dated 14th September, 2001 and although the report of the bailiff discloses that defendant no.1(a) was served at the address of her husband (from whom she was already divorced in the year 1991), in fact defendant no.1 (a) was not served, as evident from the fact that even after passing of the preliminary decree the plaintiffs sought to serve again defendant no.1(a). According to learned Counsel, defendant no.1(a) was served for the first time in December, 2002 and the record discloses that she was represented by an advocate in the suit for the first time on 17th March, 2003. Learned Counsel further submitted that it is evident from the record that advocate engaged by defendant no.1(a) appeared in the matter. Thereafter he did not advise defendant no.1(a) either to file an appeal against the preliminary decree dated14th September, 2001 or to file an application to set aside the ex-parte decree dated 14th September, 2001 and as such, no fault can be found with defendant no.1(a) for having relied on the advice given by her advocate. According to learned Counsel, there is no inaction or negligence on the part of defendant no.1(a) in challenging the impugned decree which she actually challenged only after the order was passed by this Court dismissing Writ Petition No.566/2004 holding that Writ Petition was not maintainable and appropriate remedy was to file an appeal against the decree. Learned Counsel further submitted that having regard to these facts and also having regard to the fact that number of deaths had occurred in the family of defendant no.1(a) during the relevant period, no fault can be found with the impugned order condoning the delay in filing the appeal and the lower appellate Court has rightly compensated the plaintiffs by awarding costs in their favour. In support of his submissions Mr. Lotlikar relied upon the following judgments : (i) N. Balakrishnan Vs. M. Krishnamurthy; (1998)7 SCC 123 (ii) PratapchandLakhamaji Jain Vs. In support of his submissions Mr. Lotlikar relied upon the following judgments : (i) N. Balakrishnan Vs. M. Krishnamurthy; (1998)7 SCC 123 (ii) PratapchandLakhamaji Jain Vs. Smt. Lilabai Krishnath Surve; 1999(1)BCR 27. (iii) Bhagmaland others vs. kunwar lal and others; (2010)12 SCC 159 . (iv) Improvement Trust, Ludhiana Vs. Ujagar Singh and Ors; 2010 All SCR 2321. 10. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 11. In so far as the service on defendant no.1(a) in the suit is concerned, no doubt, the report of the bailiff discloses that she was served on the address of her husband Mr. Jeronimo Zuzarte. The notice was served on 30th November, 1999. However, it is the case of defendant no.1(a) that her marriage with Jeronimo Zuzarte was dissolved on 15th June, 1991 which fact has not been seriously denied on behalf of the plaintiffs. Moreover, defendant no.1(a) stated that she got married with Jao Baptista D'Souza on 17th October, 1996. This fact has also not been denied by the plaintiffs. Therefore, the finding of the lower appellate Court that she was factually not served in November, 1999 cannot be said to be perverse warranting interference in exercise of revisional jurisdiction. Therefore, it is evident that prior to the passing of the preliminary decree dated 14th September, 2001, defendant no.1(a) was not served in the suit. The record further discloses that defendant no.1(a) was again served in the suit somewhere in December, 2002 and on her behalf for the first time advocate Nasnolkar filed vakalatnama on 17th March, 2003 and thereafter she was represented by different advocates till she preferred appeal against the preliminary decree along with an application for condonation of delay. In this factual background, the case set up by defendant no.1 that she relied upon the advice given by her advocate has to be appreciated. It is the case of defendant no.1(a) that at no point of time her advocate advised her either to challenge the preliminary decree or to file an application for setting aside the ex-parte decree. In this factual background, the case set up by defendant no.1 that she relied upon the advice given by her advocate has to be appreciated. It is the case of defendant no.1(a) that at no point of time her advocate advised her either to challenge the preliminary decree or to file an application for setting aside the ex-parte decree. There is no serious dispute that defendant no.1 (a) is not well versed in law and, therefore, the stand taken by defendant no.1(a) that she relied upon the advice given by her advocate and as such, did not file an appeal till Writ Petition No.566/2004 filed by her brother was dismissed, cannot be said to be improbable so as to be disbelieved. A party specially, who is not well versed in law engages an advocate is bound to rely upon the advice given by his/ her advocate and such party cannot be faulted for resorting to wrong remedies and/ or for not resorting to appropriate remedy available in law. Thus, the approach of the lower appellate Court in condoning the delay of over 3 years in filing the appeal cannot be faulted. The lower appellate Court has meticulously gone into the record and has applied correct principles while condoning the delay in preferring the appeals. No doubt, the delay is substantial, but the law is well settled that it is not the period of delay but the cause shown by party seeking condonation of delay is relevant and it is only when the period is short then a liberal view has to be taken. The mere fact that the delay is substantial by itself is not sufficient to dismiss the application for condonation, if otherwise sufficient cause is shown by the party seeking condonation of delay. In my considered opinion, no fault can be found with defendant no.1(a) in relying upon the advice given by her advocate and proceeding in the suit even after passing of the preliminary decree without resorting to the remedy of either filing appeal or an application for setting aside the ex-parte decree. 12. Since both the parties relied upon number of judgments, I deem it appropriate to refer to the same. 12. Since both the parties relied upon number of judgments, I deem it appropriate to refer to the same. In the case of Oriental Aroma Chemical Industries Ltd. (supra), the Apex Court held that the High Court had committed error in condoning delay of more than 4 years since incorrect and ex-facie false statements were made by the party, who had approached the High Court with unclean hands. The Apex Court held that liberal approach should be followed in condoning delay of short duration and stricter approach in case of inordinate delay. However, the Apex Court held that if sufficient cause is shown, delay has to be condoned. In the case of Balwant Singh (supra), the Apex Court held that there is no straight jacket formula uniformly applicable in all cases of condonation of delay. The Apex Court was dealing with an application for setting asideabatement of the suit and condonation of delay in bringing the legal representatives on record in the suit. The Apex Court further held that liberal construction cannot be equated for doing injustice to other party. This balance has to be kept in mind by the Court while deciding such an application and legal and adequate reasons must exist while condoning the delay. In the case of Victor Albuquerque (supra), the learned Single Judge of this Court having regard to the factual matrix in the case, refused to condone the delay of 182 days in filing appeal from order. In the case of Commissioner, Nagar Parishad, Bhilwara (supra), the Apex Court held that while deciding the application for condonation of delay, the High Court had erred in going into merits of the case. The Apex Court held that on facts, delay had been sufficiently explained. 13. In the case of N. Balkrishnan (supra) relied upon by Mr. Lotlikar, the Apex Court has held that the words 'sufficient cause' must be construed liberally and acceptability of explanation for delay is the sole criterion, and length of delay is not relevant. The Apex Court further held that in the absence of any malafides or deliberate delay as a dilatory tactic, the court should normally condone the delay, but while doing so, the Court should keep in mind the consequent litigation expenses incurred by the opposite party and compensate him accordingly. The Apex Court further held that in the absence of any malafides or deliberate delay as a dilatory tactic, the court should normally condone the delay, but while doing so, the Court should keep in mind the consequent litigation expenses incurred by the opposite party and compensate him accordingly. The Apex Court further held that when the Court condones delay in exercise of discretion, the Superior Court and more particularly, the revisional Court should not normally disturb the same, but where request of condonation of delay is refused, it would be open to superior Court to come to its own finding on the basis of the explanation for delay given by the party. In this case, the Supreme Court set aside an order passed by the High Court by which the High Court had allowed revision application against the order passed by the trial Court condoning the delay of 883 days in approaching the Court by the defendant against the dismissal of his application to set aside the ex-parte decree passed against him. In the case of Pratapchand Jain (supra), the learned Single Judge of this Court condoned the delay of thirteen and half years on the ground that the delay was caused on account of wrong advice given by his Advocate. In the case of Improvement Trust Ludhiana (supra), the Apex Court while dealing with an application for setting aside sale on the ground of irregularity or fraud, held that unless malafide is writ large on the conduct of the party, as a normal rule delay should be condoned and attempt should always be made to allow the matter to be decided on merits rather than to throw it out on technicality. In the case of Bhagmal (supra), the Apex Court condoned delay in filing an application for setting aside exparte decree which was filed within 30 days from the knowledge of the decree and set aside the order passed by the High Court by which the application was dismissed. 14. The impugned order having been tested on the touchstone of the principles laid down by the Apex Court in aforesaid judgments, no fault can be found with the impugned order since defendant no.1(a) chose to rely upon the advice given by her advocate. 15. 14. The impugned order having been tested on the touchstone of the principles laid down by the Apex Court in aforesaid judgments, no fault can be found with the impugned order since defendant no.1(a) chose to rely upon the advice given by her advocate. 15. For the reasons aforesaid, I am of the considered opinion that it cannot be said that the lower appellate Court has exercised jurisdiction illegally while condoning the delay of over 3 years in filing the appeal from the preliminary decree dated 14th September, 2001. According to Mr. Lotlikar, respondent no.1(a) has already furnished bank guarantee for Rs.25,000/- ordered by the trial Court while granting stay of the decree and she was always prepared to pay costs of Rs.5,000/-which has not been accepted by the plaintiffs probably on the ground that challenge was made to the order granting condonation of delay in filing the appeal. Therefore, respondent no.1(a) to deposit the costs of Rs.5,000/- in the lower appellate Court within a period of four weeks from today. Liberty to the petitioners herein to withdraw the costs after they are deposited. 16. The interim order dated 1st February, 2008 staying the further proceedings in Appeal No.66/2007 pending before the IInd Additional District Judge, Panaji is vacated. Parties to appear before the lower appellate Court on 1st August, 2011 at 10.00 a.m. Considering that the suit was filed in the year 1981 and the appeal is against the preliminary decree passed in the year 2001, the lower appellate Court to dispose of the appeal expeditiously and in any case on or before 30th April, 2012. 17. Revision Application stands disposed of accordingly with no order as to costs.