Back
2013 Supreme(Bom) 2157
In the High Court of Bombay at Aurangabad
MRIDULA BHATKAR, J.
Shahurao s/o Sitaram Bhalerao & Others
Versus
Vishwanath s/o Rama Jadhav, since deceased through L.Rs. & Others
Writ Petition No.2729 of 2012
Decided On : 22-10-2013
Advocate Appeared:
For the Petitioners:C.V. Dharurkar, Advocate.
For the Respondents:R7 & R8, G.K. Naik-Thigle, Advocate.
Headnote:Constitution of India - Article 227 - Limitation Act, Section 5 - CPC, Order XLI, Rule 19, Order XLIII, Rule 1(t) - Condonation of delay in filing restoration application. - Writ petition challenging order rejecting application for condonation of delay in filing restoration application, is maintainable. - Under Section 5 of the Limitation Act, application for condonation of delay is moved and the said provision is not listed in Rule 1 of Order XLIII of the CPC. Though there is provision of appeal against order of refusal of application for readmission/restoration, made under Rule 19 of Rule XLI of the CPC, there is no provision of appeal against order of rejection of application for condonation of delay. Thus, Rule 1(t) of Order XLIII of the CPC specifically covers order of refusal under Rule 19 of Order XLI to readmit, or under Rule 21 of Order XLI to re-hear an appeal. Therefore, submission of Mr Thigle that the petitioners ought to have filed appeal from order under Order XLIII Rule 1 (t) of the CPC, is not sustainable within the folds of Order XLIII of the CPC.
As per Section 100 of the C.P.C., second appeal shall lie to the High Court on every decree passed in appeal by any Court sub-ordinate to the High Court. Rejection of the application for condonation of delay for re-admission, is not a decree. If appeal is filed and dismissed for default, the remedy is contemplated under Order XLIII, Rule 1 (t), that means refusal is an order and it is not a decree. If refusal to readmit or restore would have been considered as decree, then it would not have been specified under Order XLIII, but it would have been excluded from the said order and would have been covered under Order XLII or Section 100 of the CPC. However, it is treated as an order and, therefore, appeal against order is provided. Hence, it is logical when the application for condonation of delay is rejected, then by necessary implication, application for readmission/restoration is also rejected a nd for such refusal second appeal is not provided; so also it is not covered under Order XLIII Rule 1 (t) of the CPC and, therefore, the petitioners have only remedy available is to prefer petition under the writ jurisdiction under Article 227 of the Constitution.
In the result, it is held that writ petition is maintainable and not an appeal under Order XLIII or under Order XLII of the CPC. It is made clear that all contentions including the issue raised under Order XXII, Rule 4 of the CPC are kept open and to be considered on merit at the time of hearing of the writ petition.
1. This writ petition is directed against the order dated 17.1.2012 passed by District Judge-II, Beed in Miscellaneous Civil Application No.192/2006 in R.C.A.No.100/2002.
2. Respondents filed R.C.S.No.32/1993, against the petitioners for possession of the suit land. The said suit was decreed by judgment and order dated 26.7.2002 by Civil Judge, Junior Division, Gevrai. The said judgment and order dated 26.7.2002 was challenged by the present petitioners by filing R.C.A.No. 100/2002. Said Regular Civil Appeal was dismissed for default on 1.9.2005 by V Ad hoc Additional District Judge, Beed. The petitioners thereafter filed application for restoration and readmission of the said appeal. However, there was delay of 10 months and 5 days for filing the application for restoration of the appeal and, therefore, a separate application for condonation of delay was filed. Both the applications were heard and the District Judge-2, Beed, by order dated 17.1.2012 dismissed the said application for condonation of delay. Hence, this petition.
3. Learned Counsel for the respondents, at the outset, raised objection to the maintainability of this petition. Learned Counsel for both the sides advanced their arguments on this point and by consent, requested the Court to decide this issue first.
4. Learned Counsel for the respondents submitted that by impugned order, the application for condonation of delay for filing application for setting aside the order of dismissal of the appeal is dismissed, which, in fact, amounts to the dismissal of the appeal itself. He submitted that the petitioners, therefore, should not have filed the petition challenging the said orders, but considering the final result of the dismissal of these applications, it was necessary for the petitioners to file appeal against the said order under Order XLIII, Rule 1 (t) of the Code of Civil Procedure and second appeal under Order XLII of the C.P.C. Learned Counsel fortified this submission on the basis of ratio laid down by the Honourable Supreme Court in ShyamSundar Sarma Vs.Pannalal Jaiswal and ors., reported in (2005) 1 Supreme Court Cases 436, in which Honourable Supreme Court held that refusal to condone the delay amounts to dismmisal of appeal. He relied on the order passed by the learned Single Judge of this Court dated 8.12.2010 in Second Appeal No.502 of 2009 (Namdeo s/o Kishan Sakhare Vs. Sow.Dwarkabai w/o Jija Sakhare & Ors.), wherein the appeal was dismissed on refusal to allow the application for condonation of delay and so, the second appeal was preferred and the Court, while admitting the second appeal, formulated a substantial question of law in respect of proof of sufficient cause in the application for condonation of delay. Learned Counsel further relied on the judgment of this High Court in Chandus/o Jagannath Ambekar and anr. Vs. Digambar s/o Kisanrao Kulkarni and ors., reported in 2004 BCI (0) 69.
5. In reply, learned Counsel for the petitioners submitted that application for restoration of appeal was dismissed due to the dismissal of the application for condonation of delay. Hence, no appeal can lie on such order, but the only remedy available is to avail of the writ jurisdiction of this Court. He submitted that the facts of his case are different from the facts in the case of Shyam Sundar (supra) and, therefore, the matter is different than the case of Shyam Sundar (supra). He submitted that in the case of Shyam Sundar (supra), appeal was not dismissed, but the application for condonation of delay, for filing appeal was dismissed and, therefore, it was considered that the appeal is dismissed. Learned Counsel further argued that under Rule 3A of Order XLI of the C.P.C., application for condonation of delay is preferred, if the appeal is presented after the expiry of period of limitation specified under the Limitation Act. Learned Counsel submits that in the case of Shyam Sundar Sarma (supra), such application under Rule 3A of Order XLI of th
