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2014 DIGILAW 254 (BOM)

Shewantabai v. Purushottam

2014-02-03

A.P.BHANGALE

body2014
Judgment 1. Heard finally with the consent of the learned Counsel for the respective parties. 2. Admitted on the following substantial question of law: Whether in the facts and circumstances the first Appellate Court erred by refusing to hear first appeal on merits by refusing to condone delay? My answer is in the affirmative for the reasons as stated below. 3. This appeal arises from order dt. 8.11.2012 passed by the learned Principal District Judge, Wardha whereby the learned first Appellate Judge refused to condone delay on the ground of absence of reasonable explanation for the delay caused to prefer the First Appeal. It appears that present appellants are, in fact, legal heirs of appellant before the first Appellate Court namely Smt. Shewantabai Kashinath Kumbhare, who is referred to in the impugned order and who is no more living. Most of the reasoning given by the first Appellate Judge was about age of applicant Shewantabai as to whether she was aged 67 years or 82 years and also certificate regarding medical treatment of Shewantabai as to whether she was suffering from hypertension, anaemia with general debility due to old age and whether she was advised bed rest for the period concerned and about her presence and attendance in the Court on 6.12.2011 and 31.12.2011. Ultimately, the learned first Appellate Judge, instead of hearing the matter on merits, held that long and inordinate delay of 394 days excluding the period of appeal i.e. of 360 days has occurred. The concluding part that there was no reasonable ground for delay itself is answered by unfortunate death of Shewantabai as this second appeal is now preferred by her legal heirs on account of her death. 4. In support of the contention that the First Appeal should have been entertained and heard on merits on behalf of the appellants, reference is made to the ruling in the case of Shyam Sunder Sarma .vs. Pannalal Jaiswal and Others reported in 2005 (1) Mh.L.J. 340 . The three Judges Bench of Hon'ble Supreme Court observed in para nos. 4. In support of the contention that the First Appeal should have been entertained and heard on merits on behalf of the appellants, reference is made to the ruling in the case of Shyam Sunder Sarma .vs. Pannalal Jaiswal and Others reported in 2005 (1) Mh.L.J. 340 . The three Judges Bench of Hon'ble Supreme Court observed in para nos. 9 and 10 about the legal position in this regard making reference to earlier judicial precedents in M/s.Mela Ram and Sons vs. The Commissioner of Income Tax, Punjab reported in 1956 SCR 166 , wherein the Apex Court held that the appeal presented out of time is an appeal and order dismissing it as time barred is one passed in appeal. Reference is also made to the ruling in SheodanSingh .vs. Daryao Kunwar reported in AIR 1966 SC 1332 rendered by four Judges of the Apex Court by which it was held that where decision is given on merits by the trial Court and matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal, when it confirms decision of the trial Court on merits, itself amounts to appeal being heard and finally decided on merits whatever be the ground for dismissal of appeal. The Apex Court also gave clarification in respect of Full Bench decision of Kerala High Court in Thambivs. Mathew reported in 1987 (2) KLT 848 holding that the appeal presented out of time was nevertheless appeal in the eye of law for all the purposes and the order dismissing the appeal was a decree that could be the subject matter of a Second Appeal. The Second Appeal was, therefore, held as competent. 5. The learned Counsel for the respondents made a reference to the case of The Commissioner, Hubli Dharwad Municipal Corporation vs. Shrishail and Others reported in AIR 2004 Karnataka 75. The learned Counsel argued that this was a decision by the Full Bench of the Karnataka High Court in which order of dismissal of First Appeal as barred by limitation was treated as not a decree and it was held that the Second Appeal against such order is not maintainable. Even if formal decree is drawn as, according to the Full Bench of Karnataka High Court, proper course is to file revision under Section 115. Even if formal decree is drawn as, according to the Full Bench of Karnataka High Court, proper course is to file revision under Section 115. This appears to be a contrary view to the views taken in earlier cases referred to which unfortunately were not brought to the notice of Full Bench of Karnataka High Court including the view of Full Bench of Four Judges in Sheodan Singh's case (cited supra). Therefore, the Full Bench view of the Karnataka High Court when compared with the view in Shyam Sunder Sarma's case, it would not be a good law as in such cases when the first Appellate Court refuses to condone delay in filing the appeal, it would amount to dismissal of the appeal itself as the trial Court's decree is confirmed thereby. That being so, substantive remedy of appeal would be available against such refusal to condone delay which, in fact, results in decision of the first appeal itself. 6. Looking to the Judgment and Order in the present case passed by the trial Court, it appears that the suit was instituted by the plaintiffs on the basis of title as owner for possession of the suit house. The defendant had resisted the suit disputing title of the plaintiffs and also alleged that the plaintiffs had indulged into illegal money lending business. While hearing submissions at the bar, it does appear by looking into the impugned Judgment and Order that the trial Judge appears to have ignored framing issues on the basis of plea as to whether the plaintiff was running illegal money lending business. Though, according to the learned Counsel for the respondent, other issue was touching to the plea raised by the defendant whether loan in the sum of Rs.30,000/- was taken by the defendant from the plaintiffs and they executed sale deed by way of security. 7. In the light of submissions at bar, I had an advantage to consider the Judgment and Order passed by the trial Court as well as the order whereby the learned first Appellate Judge refused to condone delay of 360 days being long and inordinate. 7. In the light of submissions at bar, I had an advantage to consider the Judgment and Order passed by the trial Court as well as the order whereby the learned first Appellate Judge refused to condone delay of 360 days being long and inordinate. In my opinion, when the first Appeal is preferred, in considering the prayer for condonation of delay in preferring the first appeal, hypertechnical approach should not be adopted as the order refusing to condone delay results in causing irreparable loss to the appellant, in whose favour delay could be condoned for hearing controversy between the parties on merits and in accordance with law. It must be borne in mind that first appeal under Section 96 of the Code of Civil Procedure is valuable right to be heard on facts and law. Conscious application of judicial mind is must for to record findings upon all issues and contentions. 8. This Court in the case of Chandrakant Govind Sutar vs. M. K. Associates and another reported in 2003 (1) Mh.L.J. 1011 considered the duty of the Counsel towards his client as well as duty towards the Court with reference to the Advocates Act as well as the Civil Procedure Code. Regarding the order passed below the application for condonation of delay, when such order is passed at the stage of first appeal, it was specifically observed by this Court that when application for condonation of delay is allowed by the subordinate Court, in those cases revision under Section 115 of the Code of Civil Procedure would be available. In other words, when an order is passed dismissing the application for condonation of delay in preferring the First Appeal, the revision application against such order was held not tenable as the consequence of dismissing the application for condonation of delay in filing the appeal results in disposing the appeal as time barred. Therefore, remedy by way of Second Appeal is available in such cases. Looking to this legal position and considering that the proceeding is sought to be taken further on behalf of the deceased appellant by her legal heirs, I think they must get sufficient opportunity to contest the suit on merits at the first appellate stage. Therefore, remedy by way of Second Appeal is available in such cases. Looking to this legal position and considering that the proceeding is sought to be taken further on behalf of the deceased appellant by her legal heirs, I think they must get sufficient opportunity to contest the suit on merits at the first appellate stage. However, as prayed for on behalf of the respondent, the opportunity is granted subject to payment of reasonable cost in the sum of Rs.2,000/- payable to the respondent as a condition precedent within a period of two weeks from today. 9. In view of above, the impugned order passed by the learned Principal District Judge is set aside. Delay in preferring the first appeal is condoned. For the reasons stated above, the learned Principal District Judge, Wardha is directed to hear the first appeal on merits and in accordance with law as expeditiously as possible and as early as possible preferably within six months. Parties to appear before the Principal District Judge, Wardha on 17.2.2014. There shall be stay to the execution regarding possession till the parties appear before the first Appellate Court on 17.2.2014.