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IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S., J.
Rajnarainsingh Avadhraj Singh others .... Applicants.
Versus
Vidyadevi Ramraj Singh Kalu Singh others.... Respondents.
Civil Application Nos. 4437 1932 of 2002 in First Appeal No. 891 of 1995, decided on 12-12-2002.
DELAY CONDONATION - Civil Procedure - Limitation Act, 1963 - Section 5, Section 12 - The court dismissed the applications for condonation of delay in filing the appeal and restoration of the appeal. The court discussed the provisions of section 5 and section 12 of the Limitation Act, 1963 and emphasized that the party must apply for a certified copy of the judgment and decree within the period of limitation to avail the benefit of exclusion of time. The court also highlighted that sufficient cause for inaction on the part of the appellant within the prescribed period justifies admission of the appeal by invoking powers under section 5 of the Limitation Act. The court rejected the arguments that a party cannot claim benefit under section 5 if the party fails to disclose any such acts on his or her part. The court emphasized that condonation of delay is a matter of concession or indulgence to the applicant and should be granted when no negligence or want of bona fide is imputable to the applicant.
Fact of the Case:
The petitioners filed an application for condonation of delay in filing the appeal and restoration of the appeal. The court found that the certified copy of the decree was not filed along with the appeal against the judgment of the trial Court. The court discussed the timeline of events and the failure of the petitioners to justify the delay in filing the appeal.
Finding of the Court:
The court found that the petitioners failed to disclose any sufficient cause for condonation of delay. The applications for condonation of delay and restoration of the appeal were dismissed with no order as to costs.
Issues: The main issue was whether the petitioners provided sufficient cause for condonation of delay in filing the appeal and restoration of the appeal.
Ratio Decidendi: The court emphasized that the party must apply for a certified copy of the judgment and decree within the period of limitation to avail the benefit of exclusion of time. The court also highlighted that condonation of delay is a matter of concession or indulgence to the applicant and should be granted when no negligence or want of bona fide is imputable to the applicant.
Final Decision: The applications for condonation of delay and restoration of the appeal were dismissed with no order as to costs.
In the facts and circumstances of the case both the applications being required to be heard together, were heard accordingly and are being disposed of by this common order.
2. Rule. By consent, the rule made returnable forthwith.
3. Civil Application No. 4437 of 2002 is for condonation of delay in filing Civil Application No. 1932 of 2002 and later application i.e. Civil Application No. 1932 of 2002 is for restoration of First Appeal No. 891 of 1995, which was dismissed on 6th October, 2001 as well as for condonation of delay in filing the certified copy of the decree in the said appeal. Civil Application No. 4437 of 2002 is hereinafter referred to as the 'application for condonation of delay' and the Civil Application No. 1932 of 2002 is hereinafter referred to as the 'application for restoration'.
4. In the proceedings in application for condonation of delay it is the case of the petitioners that after the dismissal of the appeal on 6th October, 2001 the appellants preferred Letters Patent Appeal No. 60 of 2001 which was disposed of on 11-3-2002 and thereafter the application for restoration was filed on 1-4-2002 and therefore, there was sufficient cause for condonation of delay in filing the application for restoration.
5. As far as proceedings in the application for restoration is concerned, it is the case of the petitioners that after the extension of period by three months for enabling the petitioners to place on record certified copy of the decree by the order passed by this Court on 24-1-2001, the certified copy of the decree was actually filed in this Court on 23-3-2001. However, by order dated 22-6-2001 as none appeared on behalf of the petitioners in the said appeal and no steps were taken to explain the delay in filing the certified copy of the decree and the office objections in that regard were not removed, it was ordered that the matter be placed before the Court on 18-7-2001. Thereafter, when the first appeal came up for final hearing on 6-9-2001 the same was ordered to be dismissed on the ground that inspite of giving sufficient time, no steps were taken to file an application for condonation of delay and therefore, the appeal was ordered to be barred by limitation and dismissed. The petitioners preferred letters patent appeal which was came up for hearing on 11-3-2002 and the petitioners withdrew the same stating that they would file application before the learned Single Judge for condonation of delay in filing the certified copy and for restoration of the appeal and that the petitioners therefore, have filed the said application. It is further their case that after the delivery of judgment by the trial Court on 31-7-1995 the certified copy of the order was applied on 14-9-1995 and the appeal was filed without waiting for certified copy of the decree. It is their further contention in the application that the appeal has already been admitted and the petitioners having given sufficient time to produce the certified copy, they did not make any application for condonation of delay and that the appeal having once admitted, the same could not have been dismissed without fully hearing of the appeal and after giving reasons for dismissal of the appeal.
6. The learned Advocate appearing for the petitioners has submitted that after the disposal of the suit by the trial Court by its judgment on 31-7-1995 an application for certified copy of the judgment was filed on 14-9-1995 on a printed form. However, while applying certified copy of the judgment, the Advocate for the petitioners did not ask for the certified copy of the decree and the application was filed only in relation to the certified copy of the judgment and order and this fact was not known to the petitioners. It was only after the objections were raised, the petitioners with the help of another Advocate took out a search of the reports and then realised that the applica
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