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2014 DIGILAW 716 (BOM)

Chandrakant v. State of Maharashtra

2014-03-14

T.V.NALAWADE

body2014
Judgment : 1) This appeal is filed against the judgment and order of MARJI No.172/2008 which was pending in the Court of the District Judge-4, Aurangabad. The application was filed by the present appellant for condonation of delay of more than 1 year and 8 months caused in filing Regular Civil Appeal against the decision given by the trial Court in a suit filed for relief of injunction. Both the sides are heard. 2) Regular Civil Suit No.831 of 2003 was filed by present appellants against the respondents. The respondents include officers of the Survey Department and officers of the Municipal Council, Paithan. The other defendant are said to be neighbours of the plaintiffs. The suit was filed in respect of house property bearing Nos. 1856 to 1859 having size of 60 x 49 ft situated at Kaherwada, Taluka Paithan. Relief of perpetual injunction was sought by the appellants and it is refused by the trial Court. There are allegations against the officers of the Survey Department and the Municipal Council that they created false record in favour of defendant Nos.3 and 4, neighbours, by joining hands with them. 3) It is the case of the appellants/plaintiffs that Laxman and Ghanshyam were the owners of the suit property and after their demise the plaintiffs have become owner of the suit property. They contended that in the past, Bansi, the predecessor of defendant Nos.3 and 4 and Hiraman had filed Regular Civil Suit No.54 of 1963 for the possession of the aforesaid property against Laxman and Ghanshyam and the suit was dismissed by the Court. It is contended that the defendant Nos.3 and 4 have no concern whatsoever with the title and possession of the suit property. 4) It is the case of the defendant Nos.3 and 4 that their predecessors, Bansi and Hiraman, were the owner of the suit property. It is contended that in city survey record also there were names of Bansi and Hiraman and after their demise, the names of defendant Nos.3 and 4 are entered in the record of the city survey and assessment record created by the Municipal Council. It is contended that in the past Bansi and Hiraman had filed a suit against Ghanshyam and Laxman for possession of the suit property and the suit was decided in favour of Bansi and Hiraman. It is contended that in the past Bansi and Hiraman had filed a suit against Ghanshyam and Laxman for possession of the suit property and the suit was decided in favour of Bansi and Hiraman. It is contended that possession was actually handed over to their predecessors and so they are in possession as owners. 5) The trial Court considered the record of previous suit like Regular Civil Suit No.54 of 1963 and also the decision given by the First Appellate Court in Regular Civil Appeal No.108 of 1964. The Lower Appellate Court decreed the suit of Bansi and Hiraman though the suit was dismissed by the trial Court and this decision has become final. As per the decision of the First Appellate Court, possession of the suit property was handed over to Bansi and Hiraman. The judgment of the trial Court shows that the present appellants admitted that defendant Nos.3 and 4 have made construction over this property. The record prepared by city survey office and the officers of the municipal council is also considered by the trial Court and the suit is dismissed. 6) In the application filed for condonation of delay, the present appellants had contended before the District Court that there was sufficient cause for not filing appeal in time. They contended that the period prescribed for filing appeal was 90 days and they had applied for certified copy immediately after the decision of the suit. It is contended that certified copy was supplied to them on 1-3-2006. They contended that as petitioner No.2 was suffering from heart disease and he was hospitalized as indoor patient he could not take steps for filing appeal. It was contended that petitioner No.1 was serving at other station and so he could not take steps for filing appeal. They contended that the delay was not caused intentionally. 7) Defendant Nos.3 and 4, present respondents, contested the proceeding by contending that no sufficient cause was shown. They further contended that the actual delay was of 22 months and 4 days and not as claimed by the present appellants. 8) The District Court has considered the circumstance like present appellant No.1 was in service. The District Court has considered the contention that appellant No.2 / plaintiff No.2 was suffering from heart disease. They further contended that the actual delay was of 22 months and 4 days and not as claimed by the present appellants. 8) The District Court has considered the circumstance like present appellant No.1 was in service. The District Court has considered the contention that appellant No.2 / plaintiff No.2 was suffering from heart disease. It is observed that when appellant No.1 was in service he was attending the duty, it is not open to him to say that there was some reason for him not to file appeal in time. In respect of petitioner No.2/appellant No.2 it is observed that no convincing record is produced even to show that he was hospitalized for 4 to 5 months. It is observed that even if it is presumed that he was hospitalized for 4 to 5 months, he has not offered explanation with regard to the remaining period. With these observations the application filed for condonation of delay is dismissed. 9) In the present proceeding a copy of judgment delivered in Regular Civil Appeal No.108 of 1964 and copy of possession record prepared in execution proceeding bearing No.75/1966 came to be produced. It was submitted by the learned counsel for the original defendant Nos.3 and 4 that the matter was already decided in the year 1966 and possession was also handed over in 1966 and there was no reasons for filing the suit again. On the other hand, learned counsel for the appellants submitted that the dispute involved is in respect of immovable property and the First Appellate Court ought to have held that sufficient cause is shown. Learned counsel for the appellants has placed reliance on a case reported as 2008 AIR SCW 5692 (Sate (NCT of Delhi) v. Ahmed Jaan. In this case, while dealing with criminal appeal, the Apex Court observed that if the explanation offered for delay is plausible, it needs to considered. It is observed that, “sufficient cause” should receive liberal construction. As the explanation offered was not considered, the Apex Court decided in favour of the applicant. However, it is also laid down by the Apex Court that hard and fast rules cannot be laid down to ascertain as to what constitutes “sufficient cause”. 10) There cannot be dispute over the proposition made by the Apex Court in the case cited supra. It is true that, the Court is expected to receive liberal construction. However, it is also laid down by the Apex Court that hard and fast rules cannot be laid down to ascertain as to what constitutes “sufficient cause”. 10) There cannot be dispute over the proposition made by the Apex Court in the case cited supra. It is true that, the Court is expected to receive liberal construction. In most of the cases, the Courts are not considering the other important point, whether the condonation is necessary to advance substantial justice. Condonation of delay in many cases unnecessarily causes harassment to the other side and it is found that in many cases the guiding principles laid down by the Hon'ble Apex Court are not followed. To remind those principles it has become necessary to discus the principles, law laid down by the Apex Court. 11) Section 5 of the Limitation Act runs as under:- “5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribe period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertain or computing the prescribed period may be sufficient cause within the meaning of this section.” 12) In Section 5 at two places the word “may” is used. This shows that the Curt has discretionary power in this regard. Section 5 further shows that the party seeking extension of prescribed period is required to satisfy the Court that he had sufficient cause for not preferring the appeal/application and that arose within such period and continued thereafter. Thus, existence of sufficient cause is a condition for use of discretion by the Court. Section 5 further shows that the party seeking extension of prescribed period is required to satisfy the Court that he had sufficient cause for not preferring the appeal/application and that arose within such period and continued thereafter. Thus, existence of sufficient cause is a condition for use of discretion by the Court. 13) In the case reported as AIR 1962 SC 361 (V 49 C 56) (Ramlal v. Rewa Coalfields Ltd.), the Apex Court has laid down that in construing this section two important considerations should be followed viz (a) that the expiration of the period of limitation prescribed for an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between parties and this right, which has accrued to the decree holder by lapse of time should not be lightly disturbed; and, (b) that if sufficient cause for causing delay is shown, discretion is given to the Court to condone the delay and admit the appeal. This discretion has been conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. 14) The provision of section 5 and the observations made by the Apex Court show that there are two considerations in section 5 of the Limitation Act. The provision needs to be considered from both the angles mentioned by the Apex Court. So far as the construction of expression “sufficient cause” is concerned, the law is well settled. Section 5 does not require a “good cause” but requires “sufficient cause” which is something more than good cause. The expression “sufficient cause” is not defined but it is laid down by various Courts that it must mean a cause which is beyond the control of the party invoking the section. Any cause which prevents the parties approaching the Court within time is sufficient. Here only it needs to be observed that the cause must have arisen within prescribed time and the cause must have continued beyond that. In ascertaining cause, the test of reasonable man in normal circumstance needs to be applied. The burden in this regard rests on the party seeking condonation of delay. He needs to discharge it by adducing evidence. Here only it needs to be observed that the cause must have arisen within prescribed time and the cause must have continued beyond that. In ascertaining cause, the test of reasonable man in normal circumstance needs to be applied. The burden in this regard rests on the party seeking condonation of delay. He needs to discharge it by adducing evidence. 15) The Apex Court has laid down that the purpose of provision is to advance substantial justice and so the Court using discretion must prima facie ascertain whether denying of relief would amount to frustrating meritorious case and denying substantial justice. As care needs to be taken in this regard, it can be said that the expression “sufficient cause” is widely elastic. In one case, a ground may not be acceptable as sufficient ground for condonation of delay but the same ground in other case, in view of facts and circumstances of that case, may be a valid ground for condonation of delay. In one case if Court finds that the party seeking condonation has arguable case, there is prima facie merit in the matter, the Court may hold on the basis of explanation given by the party that sufficient cause is shown. In other case even when the ground is the same, if Court finds that condoning the delay would unnecessarily cause harassment to the other side, it will be defeating the interests of justice, the party applying for condonation has is no arguable case, the Court may refuse to condone the delay. 16) The provision of section 5 of the Act has given discretionary power to the Court and the party applying for condonation has no right as such. In a case the party applying for condonation of delay may be in a position to show “sufficient cause” and there may be a ground in that regard which cannot be disputed. However, in such a case also the Court has to exercise discretion judiciously and the exercise must be to advance substantial justice. The Court is expected to give reasons for refusing to condone the delay or for giving relief of condonation of delay. This needs to be done in systematic manner as observed above. The reasons must be on the grounds mentioned to make out sufficient cause and there must also be reasons on the point of prima facie merits of the case and bona fides. This needs to be done in systematic manner as observed above. The reasons must be on the grounds mentioned to make out sufficient cause and there must also be reasons on the point of prima facie merits of the case and bona fides. In the case like present one, when there was no cause of action for the suit and the matter was already decided finally, the Court is not expected to use discretion in favour of the party applying for condonation of delay. In such a case the delay does not deserve to be condoned. The District Court has not touched the rival contentions to ascertain prima facie merits of the case. However, the District Court has not committed error in dismissing the application filed by the present appellants. 17) As a general rule, the Appellate Court is not expected to interfere with the discretion exercised by the lower Court in allowing or rejecting the application for condonation of delay, unless it appears that the Court has not exercised at all the discretion or the Court has not exercised the power on aforesaid judicial principles. This Court is considering the matter in second appeal and this Court has no hesitation to observe that in second appeal such interference is possible only in exceptional cases. 18) In view of the facts and circumstances, this Court holds that no arguable case is made out, no sufficient cause is shown and there is no possibility of interference in the decision given by the District Court. 19) In the result, the appeal stands dismissed.