Law Web: When court should decide application for condonation of delay and application for restoration of appeal together?

Perusal of the above extracted portion shows that the

cause shown in the application for the condonation of delay and

the cause shown for the restoration of appeal are one and the

same viz. settlement between the parties. The reasons in both

the applications are common. Once the Appellate Court recorded

this categoric finding, in my opinion, the Appellate Court should

have clubbed both the applications together and heard and

decided together. By the impugned order, the Appellate Court

has allowed the application for condonation of delay and

condoned the delay of 2120 days in filing application for

restoration. This has certainly caused prejudice to the petitioners

as admittedly the reasons in both the applications are one and

the same. Once having allowed the application for condonation

of delay, it will not be possible for the Appellate Court to dismiss

the application for restoration of the appeal as the grounds are

one and the same. In my opinion, the Appellate Court should

have, therefore, clubbed the applications together and heard

and decided together. On this ground alone, the impugned order

deserves to be set aside and is accordingly set aside, thereby,

restoring Marji Application No.12 of 2016.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 7574 OF 2016

Shaikh Mohammed Safique Vs Mohammed Sameem Mohammad Yusuf

CORAM : R.G.KETKAR,J.

DATE : 28/07/2016

1. Heard Mr.G.S.Godbole, learned senior counsel for the

petitioners and Mr.R.A.Thorat, learned senior counsel for

respondent at length.

2. Rule. Ms. Shelke waives service for the respondent. At the

request and by consent of the parties, Rule is made returnable

forthwith and petition is taken up for final hearing.

3. By this Petition under Article 227 of the Constitution of

India, the petitioners have challenged the Judgment and order

dated 5.5.2016 passed by the Appellate Bench of the Small

Causes Court in Marji Application No.12 of 2016 in Appeal No.745

of 2004 arising from R.A.E. Suit No.482/904 of 1999. By that

order, the Appellate Court allowed the Marji application filed by

the respondent for condoning delay of 2120 days in filing the

application for restoration subject to payment of costs of

Rs.50,000/- to the petitioners herein. Mr. Thorat states that

pursuant to the impugned order, the respondent has deposited

amount of Rs.50,000/- in the Court. Mr. Godbole states that the

petitioners have not withdrawn the said amount.

4. In support of this Petition, Mr. Godbole submitted that by

order dated 10.2.2010, Appeal No. 745 of 2004 was dismissed for

want of prosecution as both the parties and Advocates remained

absent. Respondent took out Marji Application No. 12 of 2016

for condoning delay of 2120 days in filing the application for

restoration. The respondent has also filed separate application

for restoration. In paragraph 18 of the impugned order, the

Appellate Court specifically observed that the cause shown in

the application for condonation of delay and the cause shown in

restoration of delay are one and the same, viz. settlement

between the parties. The reasons in both the applications are

common. Unless the delay is condoned and the application for

restoration of Appeal is registered, the matter cannot be decided

on merits. He submitted that once the Appellate Court recorded a

categoric finding that the cause shown in both the applications is

one and the same, the Appellate Court should have clubbed both

the applications together and heard and disposed of together. By

allowing the application for condonation of delay, it has caused

prejudice to the petitioners as in view of the impugned order the

Appellate Court is bound to restore the Appeal. Having accepted

the reasons for condoning delay which are selfsame reasons for

restoration of the Appeal, the Appellate Court should have heard

both the Applications together.

5. Mr. Godbole further submitted that the suit was decreed on

6.10.2003. The respondent filed application under Order IX, Rule

13 of C.P.C. He submitted that the suit was not decreed ex parte

and in fact the learned trial Judge while rejecting the application

under Order IX, Rule 13, held that, that application is not

maintainable. He further submitted that the respondent also

preferred substantive Appeal under Section 96 of C.P.C.

challenging the decree passed by the trial Court and the Appeal

was dismissed on 1.3.2005 as Advocate and the appellants were

absent and objections were not removed. He submitted that as

the substantive Appeal against the trial court's decree is

dismissed, even otherwise the application under Order IX, Rule

13 is not maintainable.

6. On the other hand, Mr. Thorat supported the impugned

order. He further submitted that the decree passed by the trial

Court is exparte decree and, therefore, the application under

Order IX, Rule 13 is perfectly maintainable. He further submitted

that Appeal (ST) No. 3194 of 2004 filed under section 96 of C.P.C

against the trial court's decree was not dismissed on merits and

was dismissed in default as the appellants and advocate

remained absent and objections were not removed. He,

therefore, submitted that the trial court's decree cannot be said

to have merged after dismissal of the appeal on 1.3.2005.

7. I have considered the rival submissions advanced by the

learned counsel appearing for the parties. I have also perused

the material on record. As noted earlier, Appeal No. 745 of 2004

was dismissed for want of prosecution on 10.2.2010 as both the

parties and Advocates remained absent. The respondent has

filed two applications, one for condonation of delay and another

for restoration of the appeal. In paragraph 18 of the impugned

order, the Appellate court has observed thus:

“ … …. All the contentions made by the appellant and the

respondents are actually towards the merits of the main

application for restoration of appeal which is yet to be

registered and heard on merits. The cause shown in this

application for the condonation of delay and the cause

shown for the restoration of appeal are one and the same

that of settlement between the parties. The reasons in both

the applications are common. Unless the delay is condoned

and the application for restoration of appeal is registered,

the matter cannot be decided on merits... ...”

8. Perusal of the above extracted portion shows that the