It is a settled position of law that in absence of any proper
explanation for delay, the same cannot be condoned merely for the
asking. The explanation has to be reasonable or plausible to enable the
Court to exercise judicial discretion – Balwant Singh (supra). Similarly,
the Court has to record a satisfaction that the explanation for the delay
was reasonable or satisfactory – P.K. Ramachandran (supra). Though a
liberal approach is required to be adopted, such approach cannot be so
exercised when there is total absence of explanation for the delay being
caused – Maniben Shah (supra).
As regards the direction to pay costs, it is already noted that
the costs can be ordered subject to there being any reasonable ground to
condone the delay. By imposition of costs the requirement of furnishing
sufficient cause cannot be dispensed with. Costs cannot be a substitute
for absence of reasons to condone the delay. The rights that had accrued
in favour of petitioner in view of the decree in his favour are also
required to be taken into consideration. Therefore, in absence of any
reason whatsoever being furnished by the respondents in the application
for condonation of delay dated 15.02.2012, the delay in filing restoration
application could not have been condoned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6835 OF 2014
Rajendra Namdeorao Akre,
V
Rajkumar Bhalerao Balbudhe,
CORAM: A.S. CHANDURKAR, J.
DATE: 30th JUNE, 2015.
Citation: 2016(1) MHLJ 184
1] Shri H.S. Chitaley, the learned counsel appearing for the
petitioner states on instructions that respondent No.2 had filed an
application on 522014 seeking permission to withdraw half of the
amount of balance consideration deposited by the petitioner. Statement
accepted. Even otherwise, the application for condonation of delay
dated 15122012 was not filed on behalf of respondent No.2. None
present on behalf of respondent No. 2.
2] Rule. Heard finally with consent of the learned counsel for the
parties.
3] By the present writ petition the petitioner takes exception to
the order dated 11.09.2014 passed in Misc. Civil Application
No.328/2012 whereby the delay in filing restoration application has
been condoned subject to costs of Rs.10,000/.
4] Brief facts are that the petitioner is the original plaintiff who
filed suit for specific performance of an agreement dated 11.04.1991.
Said suit came to be decreed on 10.10.1994. The respondents had filed
First Appeal No.101/1995, which came to be dismissed by learned Single
Judge on 02.05.2009. This adjudication was made subjectmatter of
challenge before the Supreme Court and on 30.07.2010, the Supreme
Court allowed the appeal preferred by the respondents and after setting
aside the judgment of learned Single Judge remanded the proceedings
for fresh disposal.
5] After this order came to be passed, First Appeal
No.101/1995 was dismissed in default on 13.06.2011. An application
for restoration of this appeal was filed on 06.07.2011 and by order dated
14.10.2011 said application came to be allowed. Accordingly, the First
Appeal was restored. On 23.11.2011 the appeal was again dismissed in
default due to absence of the appellants and their counsel. On
15.02.2012 an application seeking condonation of delay in filing
restoration application was moved by the respondents. The proceedings
came to be transferred to the District Court due to enhancement of its
pecuniary jurisdiction. By the impugned order this application has been
allowed by the learned District Judge by condoning the delay subject to
costs of Rs.10,000/ to be paid to the present petitioner.
6] Shri H.S. Chitaley, the learned counsel appearing for the
petitioner submitted that the Appellate Court erred in condoning the
delay in filing the application for restoration. He submitted that the
respondents had been negligent throughout the proceedings and no
reason whatsoever was assigned by them for having the delay condoned.
He referred to the earlier application for restoration dated 06.07.2011
and submitted that the reasons mentioned in that application had been
repeated in the subsequent application dated 15.02.2012. He further
submitted that after the appeal was restored on 14.10.2011, the
respondents were expected to be diligent in prosecuting the appeal. The
reason as assigned that Vaklatnama was not available with the counsel
indicates callous approach of the respondents. He then submitted that
the respondents were merely interested in delaying the proceedings with
a view to deprive the petitioner of the fruits of the decree passed. He
submitted that execution proceedings had already been filed in which
the petitioner had deposited a sum of Rs.11 lakhs and the sale deed
came to be executed in his favour on the basis of decree as passed. He
also submitted that in one hand the respondents were delaying the
proceedings and on the other hand they were going ahead with some
construction on the suit property. He, therefore, submitted that in
absence of any explanation whatsoever the delay could not have been
condoned merely by observing that the proceedings were required to be
adjudicated on its own merits. He placed reliance on the following
decisions.
[i] AIR 1998 SC 2276 P.K. Ramachandran v. State of
Kerala and another.
[ii] 2008(6) BCR 513 Pundlik Jalam Patil (D) by L.Rs. v.
Exe. Eng. Jalgaon Medium Project anr.
[iii] AIR 2010 SC 3043 Balwant Singh (Dead) v. Jagdish
Singh & Ors.
[iv] 2010(5) Mh.L.J. 262 Oriental Aroma Chemical
Industries Ltd. v. Gujarat Industrial Development
Corporation and another.
[v] AIR 2012 1629 Maniben Devraj Shah v. Municipal
Corporation of Brihan Mumbai.
7] Shri S.P. Kshirsagar, the learned counsel appearing for
respondent No.1 supported the impugned order. According to him, the
Appellate Court had rightly exercised discretion in favour of the
respondents by condoning the delay. He submitted that dismissal of the
appeal could not be attributed to the respondents but the same was on
account of absence of their counsel and in view of the fact that the
counsel was not having the requisite Vaklatnama. He relied on the
averments made in the application dated 15.02.2012 and contended that
necessary explanation had been duly assigned. He further submitted
that there was no question of prejudice being caused to the petitioner as
costs had been directed to be paid while condoning the delay. He also
submitted that in view of observations made by the Supreme Court while
remanding the proceedings the same were liable to be decided on merits.
He placed reliance on the decisions in (2010) 6 SCC 786 Improvement
Trust, Ludhiana v. Ujagar Singh and others and (2011) 4 SCC 602
Gangadhara Palo v. Revenue Divisional Officer and another.
8] I have carefully considered the rival submissions and I have
gone through the documents filed on record. The proceedings have been
long drawn and the parties are litigating with regard to validity of the
agreement dated 11.04.1991. The manner in which the proceedings
have progressed is evident from various orders passed that have been
referred to hereinabove. The aspect that requires consideration is
whether the Appellate Court was justified in condoning the delay in
seeking restoration of the appeal.
9] After the proceedings were remanded, the appeal came to
be initially dismissed on 13.06.2011. In the application for restoration
dated 06.07.2011 in para 2 thereof it was stated that as the earlier
counsel had not given no objection along with the record of the case, the
appeal came to be dismissed on 13.06.2011 in default. This reason was
accepted by this Court when it restored the appeal on 14.10.2011. The
appeal was again dismissed on 23.11.2011. In para 2 of the subsequent
restoration application dated 15.02.2012 the very same reason that was
stated in the earlier application dated 06.07.2011 has been reproduced.
In para 4 of the application dated 15.02.2012 it has been stated thus,
“That the applicants enquired about the progress of the matter on 122
2011 and on 1322011 th search of the matter was taken. It is noticed
that the first appeal was dismissed by this Hon'ble Court on 23112011.
Therefore, immediately the application for condonation of delay along with
application for restoration are prepared and filed before this Hon'ble
Court”.
Except these averments in para 4 of the said application there is no
other statement made seeking to explain the reason for the delay that
occurred in filing the restoration application. In fact the application for
condonation of delay does not contain any reason whatsoever to explain
the cause for the delay in filing restoration application after dismissal of
the appeal on 23.11.2011.
10] The learned Judge of the Appellate Court while considering
said application has held firstly the previous order of dismissal could not
be considered to be on account of any fault of the present respondents.
It is then observed that as the proceedings had been remanded for
adjudication on merits the delay deserved to be condoned. It has then
considered the averments made in para 2 of the application which
averments can at the most be said to be the reason for dismissal of the
appeal in default. In this background the Appellate Court proceeded to
condone the delay subject to costs of Rs.10,000/.
11] It is a settled position of law that in absence of any proper
explanation for delay, the same cannot be condoned merely for the
asking. The explanation has to be reasonable or plausible to enable the
Court to exercise judicial discretion – Balwant Singh (supra). Similarly,
the Court has to record a satisfaction that the explanation for the delay
was reasonable or satisfactory – P.K. Ramachandran (supra). Though a
liberal approach is required to be adopted, such approach cannot be so
exercised when there is total absence of explanation for the delay being
caused – Maniben Shah (supra).
As noted above, in para 4 of the application it is stated that on
12.02.2011 and 13.02.2011 the search of the matter was taken and the
appeal was dismissed on 23.11.2011. It is thus obvious that there is no
explanation furnished by the respondents for the delay to be condoned.
The period taken after 23.11.2011 till 15.02.2012 has not been
accounted for. In fact the application is totally silent in that regard. The
Appellate Court therefore, misdirected itself when it considered the
dismissal to be the fault of the counsel and hence the reason for
condoning the delay. Such explanation was also not furnished by the
respondents herein.
12] In Improvement Trust, Ludhiana (supra) relied upon by the
learned counsel for the respondent No.1 it was observed by the Supreme
Court that unless there was mala fide on the conduct of the party, as a
normal rule delay should be condoned. There can hardly be any dispute
with aforesaid observation. However, in absence of any explanation
whatsoever and considering the approach of the respondents of not
taking remedial steps even after the earlier order dismissing the appeal
on 13.06.2011 was set aside clearly indicates their negligence and lack of
diligence in prosecuting the proceedings. It is further well settled that
the reason for delay being caused is more material than the period of
delay. The reliance placed by learned counsel for respondent No.1 on
the observations made in para 2 of the judgment in Gangadhara Palo
(supra) wherein delay of 71 days was condoned, do not assist the case of
the respondent No.1 to have delay condoned in absence of any
explanation whatsoever.
13] As regards the direction to pay costs, it is already noted that
the costs can be ordered subject to there being any reasonable ground to
condone the delay. By imposition of costs the requirement of furnishing
sufficient cause cannot be dispensed with. Costs cannot be a substitute
for absence of reasons to condone the delay. The rights that had accrued
in favour of petitioner in view of the decree in his favour are also
required to be taken into consideration. Therefore, in absence of any
reason whatsoever being furnished by the respondents in the application
for condonation of delay dated 15.02.2012, the delay in filing restoration
application could not have been condoned. While doing so, the
Appellate Court disregarded the law as laid down by the Supreme Court
and has thereby exercised jurisdiction with material irregularity. Though
normally the Court would be loath to interfere with an order condoning
delay, the present is a case where the impugned order if maintained
would result in an order based on no material being permitted to
operate. A case has therefore, been made out to interfere in writ
jurisdiction.
14] As a result of aforesaid discussion, the following order is
passed:
[i] The order dated 11.09.2014 passed by the Appellate
Court below Exh.1 in Misc. Civil Application No.328/2012
is set aside. Instead the application for condonation of
delay dated 15.02.2012 stands dismissed.
[ii] Writ petition is allowed in aforesaid terms. No costs.
JUDGE
explanation for delay, the same cannot be condoned merely for the
asking. The explanation has to be reasonable or plausible to enable the
Court to exercise judicial discretion – Balwant Singh (supra). Similarly,
the Court has to record a satisfaction that the explanation for the delay
was reasonable or satisfactory – P.K. Ramachandran (supra). Though a
liberal approach is required to be adopted, such approach cannot be so
exercised when there is total absence of explanation for the delay being
caused – Maniben Shah (supra).
As regards the direction to pay costs, it is already noted that
the costs can be ordered subject to there being any reasonable ground to
condone the delay. By imposition of costs the requirement of furnishing
sufficient cause cannot be dispensed with. Costs cannot be a substitute
for absence of reasons to condone the delay. The rights that had accrued
in favour of petitioner in view of the decree in his favour are also
required to be taken into consideration. Therefore, in absence of any
reason whatsoever being furnished by the respondents in the application
for condonation of delay dated 15.02.2012, the delay in filing restoration
application could not have been condoned.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6835 OF 2014
Rajendra Namdeorao Akre,
V
Rajkumar Bhalerao Balbudhe,
CORAM: A.S. CHANDURKAR, J.
DATE: 30th JUNE, 2015.
Citation: 2016(1) MHLJ 184
1] Shri H.S. Chitaley, the learned counsel appearing for the
petitioner states on instructions that respondent No.2 had filed an
application on 522014 seeking permission to withdraw half of the
amount of balance consideration deposited by the petitioner. Statement
accepted. Even otherwise, the application for condonation of delay
dated 15122012 was not filed on behalf of respondent No.2. None
present on behalf of respondent No. 2.
2] Rule. Heard finally with consent of the learned counsel for the
parties.
3] By the present writ petition the petitioner takes exception to
the order dated 11.09.2014 passed in Misc. Civil Application
No.328/2012 whereby the delay in filing restoration application has
been condoned subject to costs of Rs.10,000/.
4] Brief facts are that the petitioner is the original plaintiff who
filed suit for specific performance of an agreement dated 11.04.1991.
Said suit came to be decreed on 10.10.1994. The respondents had filed
First Appeal No.101/1995, which came to be dismissed by learned Single
Judge on 02.05.2009. This adjudication was made subjectmatter of
challenge before the Supreme Court and on 30.07.2010, the Supreme
Court allowed the appeal preferred by the respondents and after setting
aside the judgment of learned Single Judge remanded the proceedings
for fresh disposal.
5] After this order came to be passed, First Appeal
No.101/1995 was dismissed in default on 13.06.2011. An application
for restoration of this appeal was filed on 06.07.2011 and by order dated
14.10.2011 said application came to be allowed. Accordingly, the First
Appeal was restored. On 23.11.2011 the appeal was again dismissed in
default due to absence of the appellants and their counsel. On
15.02.2012 an application seeking condonation of delay in filing
restoration application was moved by the respondents. The proceedings
came to be transferred to the District Court due to enhancement of its
pecuniary jurisdiction. By the impugned order this application has been
allowed by the learned District Judge by condoning the delay subject to
costs of Rs.10,000/ to be paid to the present petitioner.
6] Shri H.S. Chitaley, the learned counsel appearing for the
petitioner submitted that the Appellate Court erred in condoning the
delay in filing the application for restoration. He submitted that the
respondents had been negligent throughout the proceedings and no
reason whatsoever was assigned by them for having the delay condoned.
He referred to the earlier application for restoration dated 06.07.2011
and submitted that the reasons mentioned in that application had been
repeated in the subsequent application dated 15.02.2012. He further
submitted that after the appeal was restored on 14.10.2011, the
respondents were expected to be diligent in prosecuting the appeal. The
reason as assigned that Vaklatnama was not available with the counsel
indicates callous approach of the respondents. He then submitted that
the respondents were merely interested in delaying the proceedings with
a view to deprive the petitioner of the fruits of the decree passed. He
submitted that execution proceedings had already been filed in which
the petitioner had deposited a sum of Rs.11 lakhs and the sale deed
came to be executed in his favour on the basis of decree as passed. He
also submitted that in one hand the respondents were delaying the
proceedings and on the other hand they were going ahead with some
construction on the suit property. He, therefore, submitted that in
absence of any explanation whatsoever the delay could not have been
condoned merely by observing that the proceedings were required to be
adjudicated on its own merits. He placed reliance on the following
decisions.
[i] AIR 1998 SC 2276 P.K. Ramachandran v. State of
Kerala and another.
[ii] 2008(6) BCR 513 Pundlik Jalam Patil (D) by L.Rs. v.
Exe. Eng. Jalgaon Medium Project anr.
[iii] AIR 2010 SC 3043 Balwant Singh (Dead) v. Jagdish
Singh & Ors.
[iv] 2010(5) Mh.L.J. 262 Oriental Aroma Chemical
Industries Ltd. v. Gujarat Industrial Development
Corporation and another.
[v] AIR 2012 1629 Maniben Devraj Shah v. Municipal
Corporation of Brihan Mumbai.
7] Shri S.P. Kshirsagar, the learned counsel appearing for
respondent No.1 supported the impugned order. According to him, the
Appellate Court had rightly exercised discretion in favour of the
respondents by condoning the delay. He submitted that dismissal of the
appeal could not be attributed to the respondents but the same was on
account of absence of their counsel and in view of the fact that the
counsel was not having the requisite Vaklatnama. He relied on the
averments made in the application dated 15.02.2012 and contended that
necessary explanation had been duly assigned. He further submitted
that there was no question of prejudice being caused to the petitioner as
costs had been directed to be paid while condoning the delay. He also
submitted that in view of observations made by the Supreme Court while
remanding the proceedings the same were liable to be decided on merits.
He placed reliance on the decisions in (2010) 6 SCC 786 Improvement
Trust, Ludhiana v. Ujagar Singh and others and (2011) 4 SCC 602
Gangadhara Palo v. Revenue Divisional Officer and another.
8] I have carefully considered the rival submissions and I have
gone through the documents filed on record. The proceedings have been
long drawn and the parties are litigating with regard to validity of the
agreement dated 11.04.1991. The manner in which the proceedings
have progressed is evident from various orders passed that have been
referred to hereinabove. The aspect that requires consideration is
whether the Appellate Court was justified in condoning the delay in
seeking restoration of the appeal.
9] After the proceedings were remanded, the appeal came to
be initially dismissed on 13.06.2011. In the application for restoration
dated 06.07.2011 in para 2 thereof it was stated that as the earlier
counsel had not given no objection along with the record of the case, the
appeal came to be dismissed on 13.06.2011 in default. This reason was
accepted by this Court when it restored the appeal on 14.10.2011. The
appeal was again dismissed on 23.11.2011. In para 2 of the subsequent
restoration application dated 15.02.2012 the very same reason that was
stated in the earlier application dated 06.07.2011 has been reproduced.
In para 4 of the application dated 15.02.2012 it has been stated thus,
“That the applicants enquired about the progress of the matter on 122
2011 and on 1322011 th search of the matter was taken. It is noticed
that the first appeal was dismissed by this Hon'ble Court on 23112011.
Therefore, immediately the application for condonation of delay along with
application for restoration are prepared and filed before this Hon'ble
Court”.
Except these averments in para 4 of the said application there is no
other statement made seeking to explain the reason for the delay that
occurred in filing the restoration application. In fact the application for
condonation of delay does not contain any reason whatsoever to explain
the cause for the delay in filing restoration application after dismissal of
the appeal on 23.11.2011.
10] The learned Judge of the Appellate Court while considering
said application has held firstly the previous order of dismissal could not
be considered to be on account of any fault of the present respondents.
It is then observed that as the proceedings had been remanded for
adjudication on merits the delay deserved to be condoned. It has then
considered the averments made in para 2 of the application which
averments can at the most be said to be the reason for dismissal of the
appeal in default. In this background the Appellate Court proceeded to
condone the delay subject to costs of Rs.10,000/.
11] It is a settled position of law that in absence of any proper
explanation for delay, the same cannot be condoned merely for the
asking. The explanation has to be reasonable or plausible to enable the
Court to exercise judicial discretion – Balwant Singh (supra). Similarly,
the Court has to record a satisfaction that the explanation for the delay
was reasonable or satisfactory – P.K. Ramachandran (supra). Though a
liberal approach is required to be adopted, such approach cannot be so
exercised when there is total absence of explanation for the delay being
caused – Maniben Shah (supra).
As noted above, in para 4 of the application it is stated that on
12.02.2011 and 13.02.2011 the search of the matter was taken and the
appeal was dismissed on 23.11.2011. It is thus obvious that there is no
explanation furnished by the respondents for the delay to be condoned.
The period taken after 23.11.2011 till 15.02.2012 has not been
accounted for. In fact the application is totally silent in that regard. The
Appellate Court therefore, misdirected itself when it considered the
dismissal to be the fault of the counsel and hence the reason for
condoning the delay. Such explanation was also not furnished by the
respondents herein.
12] In Improvement Trust, Ludhiana (supra) relied upon by the
learned counsel for the respondent No.1 it was observed by the Supreme
Court that unless there was mala fide on the conduct of the party, as a
normal rule delay should be condoned. There can hardly be any dispute
with aforesaid observation. However, in absence of any explanation
whatsoever and considering the approach of the respondents of not
taking remedial steps even after the earlier order dismissing the appeal
on 13.06.2011 was set aside clearly indicates their negligence and lack of
diligence in prosecuting the proceedings. It is further well settled that
the reason for delay being caused is more material than the period of
delay. The reliance placed by learned counsel for respondent No.1 on
the observations made in para 2 of the judgment in Gangadhara Palo
(supra) wherein delay of 71 days was condoned, do not assist the case of
the respondent No.1 to have delay condoned in absence of any
explanation whatsoever.
13] As regards the direction to pay costs, it is already noted that
the costs can be ordered subject to there being any reasonable ground to
condone the delay. By imposition of costs the requirement of furnishing
sufficient cause cannot be dispensed with. Costs cannot be a substitute
for absence of reasons to condone the delay. The rights that had accrued
in favour of petitioner in view of the decree in his favour are also
required to be taken into consideration. Therefore, in absence of any
reason whatsoever being furnished by the respondents in the application
for condonation of delay dated 15.02.2012, the delay in filing restoration
application could not have been condoned. While doing so, the
Appellate Court disregarded the law as laid down by the Supreme Court
and has thereby exercised jurisdiction with material irregularity. Though
normally the Court would be loath to interfere with an order condoning
delay, the present is a case where the impugned order if maintained
would result in an order based on no material being permitted to
operate. A case has therefore, been made out to interfere in writ
jurisdiction.
14] As a result of aforesaid discussion, the following order is
passed:
[i] The order dated 11.09.2014 passed by the Appellate
Court below Exh.1 in Misc. Civil Application No.328/2012
is set aside. Instead the application for condonation of
delay dated 15.02.2012 stands dismissed.
[ii] Writ petition is allowed in aforesaid terms. No costs.
JUDGE
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