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2011(2) ALL MR 698
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R. K.DESHPANDE, J.
Vinodkumar s/o. Makhanlal Chaudhary
Vs.
Kailashkumar s/o. Makhanlal Chaudhary
Civil Application (CAA) No. 106 of 2010 IN Appeal against Order No.118 of 2009
Decided on : 7th October, 2010.
Limitation Act, 1963 - Sections 5 and 14-Scope of applicability of-Applicant prosecuting other proceedings in good faith-He, as a matter of right entitled to get excluded period spent under Section 14 of Act-While under Section 5 of Act, condonation of delay is discretion of Court.-Where writ petition is permitted to be withdrawn with liberty to file an appeal, it becomes necessary for the applicant to file and application for condonation of delay caused till the date of actual filing of an appeal. The reason is obvious that the appellate Court upon filing of fresh appeal has to be satisfied that the time was spent in prosecuting in good faith the proceedings of writ petition and the proceedings of writ petition are not before it. Though the provisions of Section 14 are not applicable to an appeal, the cause available under Section 14 can be a sufficient cause under Section 5 of the Limitation Act for condonation of delay. The only difference is that under Section 14, once it is shown that the applicant was prosecuting in good faith the other proceedings, then he is, as a matter of right, entitled to get excluded the period spent. In a case under Section 5 of the Limitation Act, the condonation of delay is not as a matter of right, but it is the discretion of the Court.
Civil Procedure Code, 1908 - Section 96-Limitation Act, 1963, Section 5-Appeal-Limitation-Condonation of delay in filing appeal-Satisfaction of existence of sufficient cause not recorded by Court while admitting appeal-Mere admission of appeal not amounts either to waiver of an objection or an estoppel to dismiss appeal as barred by time at any subsequent stage.-The question of intervention through Section 5 of the Limitation Act, in the mandate of Section 3 of the said Act, would not arise for the reason that the satisfaction of existence of sufficient cause has not been recorded by the Court while admitting the appeal. In the absence of such satisfaction being recorded by the Court to condone the delay caused in filing an appeal, the mandate of Section 3 to dismiss an appeal preferred after the prescribed period will operate till the stage of final hearing of the matter. It will not, therefore, be necessary for the Court to revoke the order of admission of the matter and the matter can be dismissed on this ground at the time of final hearing. Mere admission of the matter would not amount either to waiver of an objection or an estoppel to dismiss the appeal as barred by time at any subsequent stage.
This is an application under Section 5 of the Limitation Act for condonation of delay of 46 days caused in filing an appeal against order.
2. By an order dated 16-4-2008, the learned 4th Joint Civil Judge. Senior Division, Nagpur, allowed the application Exhibit 124 filed by the plaintiff under Order 13. Rule 11 of the Code of Civil Procedure of striking out the defence. This order was subject matter of challenge in Writ Petition No.4262 of 2008. This Court issued the notice in the said matter on 26-9-2008 and granted an ad interim stay to the proceedings before the Trial Court. On 107-2009, by a speaking order, this Court accepted the contention raised by the respondent that an appeal is maintainable against the order impugned in the petition and in view of the decision of the Apex Court in Nawab Ali Khan and Ors. Vs. Nawab Imdad Jah Bahadur and Ors., reported in (2009)5 SCC 162 : [2009 ALL SCR 961]. the petitioner was permitted to convert writ petition into an appeal against order. It was made clear that even if the appeal may be registered as such, the question as to whether it would be within limitation or not is kept open. The interim order was continued for a period of two weeks. Accordingly, writ petition was converted into an appeal against order.
3. On 16-11-2009, the parties were heard for admission of appeal against order and inspite of the fact that this Court had on 10-72009 made it clear that the question of limitation is kept open. no objection was raised that the appeal was barred by limitation. This appeal was admitted and the interim stay to the proceedings before the Trial Court was continued. Shri. Sadavarte. the learned counsel appearing for the respondent, submitted that immediately on the next day, i.e. 17-11-2009, Civil Application No.161 of 2009 was filed by him for setting aside the order dated 16-11-2009 passed by this Court, by which the appeal was admitted and the interim order was continued. This application was listed before this Court on 5-1-2010. It was pointed out by the learned Counsel for the respondent that the appeal ought not to have been admitted, as the same was barred by law of limitation. This Court, therefore, passed an order that the contentions would be considered at the time of hearing of the matter.
4. On 12-4-2010, when the matter was listed before this Court for final hearing, none appeared for the respondent and hence in order to provide an opportunity to the respondent, the matter was adjourned for the next week. Again on 21-4-2010, none appeared for the respondent. However, the learned counsel for the appellant pointed out that the appeal against order was not filed within a period of limitation and hence an application for condonation of delay was required to be filed. He. therefore, sought time of two weeks to file such application. The matter was accordingly adjourned. The application for condonation of delay was thus filed on 26-7 -2010.
5. In the application for condonation of delay, the delay sought to be condoned. is shown of 46 days counted from 6-8-2008. i.e. the date on which the certified copy was obtained, to 22-9-2008, i.e. the date on which Writ Petition No.4262 of 2008 was filed. According to him, though the permission to convert writ petition into an appeal against order was granted on 10-7-2009. the delay is required to be explained only till 22-9-2008, when writ petition was filed and not till 10-7-2009. The reason for seeking condonation of delay, as stated in para 10, is that the applicant was pursuing with due diligence, under his erroneous but bona fide assumption, that a remedy of writ petition lies against the impugned order and was unaware of the provision regarding filing of an appeal within the prescribed period of limitation. According to the learned counsel for the petitioner, although this Court permitted the petitioner to convert writ petition into an appeal against order by order dated 10-7-2009, the applicant was unaware of the delay caus
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