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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
R. K. DESHPANDE, J.
Nasirkhan Shamsher Khan – Appellant
VERSUS
Smt. Laxmibai Yashwant Radke – Respondent
CIVIL REVISION APPLICATION NO. 10 OF 2016
Decided On : 29-06-2016
Delay Condonation - Civil Suit - The court allowed the application for condonation of delay in filing an appeal, citing the defendant's lack of opportunity to contest the proceedings due to an exparte order. However, the plaintiff argued that the defendant's conduct lacked bonafides and the reasons for the delay appeared false and not bonafide. The court set aside the lower appellate court's decision to condone the delay.
Fact of the Case:
The trial court passed a decree directing the defendant to hand over the disputed portion of the suit property to the plaintiff, remove the structure erected, and pay occupation charges. The defendant filed an appeal with a delay of 764 days, citing lack of knowledge about the ongoing suit proceedings against her.
Finding of the Court:
The court found that the lower appellate court erred in condoning the delay, as the defendant's conduct lacked bonafides and the reasons for the delay appeared false and not bonafide.
Issues: Delay Condonation, Lack of Opportunity to Contest Proceedings, Bonafide Conduct
Ratio Decidendi: The court set aside the lower appellate court's decision to condone the delay, emphasizing the lack of bonafides in the defendant's conduct and the false and not bonafide reasons for the delay.
Final Decision: The revision application was allowed, the lower appellate court's decision was quashed and set aside, and the miscellaneous civil application was dismissed.
1. Heard the learned counsels appearing for the parties.
Admit.
Heard finally by consent of the learned counsels appearing for the parties.
2. The trial Court passed a decree in Regular Civil Suit No. 3225 of 2012 (Old Special Civil Suit No. 687 of 20099 on 06.01.2013. The defendant is directed to hand over the vacant possession of the disputed portion of the suit property to the plaintiff. The defendant is further directed to remove the structure erected by her from the suit property and failure to do this, it is directed that the plaintiff shall be at liberty to remove the same and recover the charges from the defendant. The defendant is also directed to pay the occupation charges of Rs.32,000/to the plaintiff.
3. The defendant preferred Regular Civil Appeal along with Misc. Civil Application No. 215 of 2015 on 06.04.2015 for condonation of 764 days delay caused in filing an appeal. The material averment in paragraph no. 5 of the application is reproduced below.
"(5) …........ That no suit summons were duly served upon her at any point of time and she had no any knowledge about the so called ongoing suit proceedings against her.
4. The lower appellate Court has allowed the said application by an order dated 18.08.2015 passed in Misc. Civil Application No. 215 of 2015. In paragraph No. 5 of the said order, it is held as under;
"5. Having regard to the submission made above, if we perused the record and proceeding of the suit, the Court has passed order below Exh1 that the defendant refused to accept the summons and notice as per Exh8 and also did not allow to affix the copy of summons and notice, hence suit proceeded exparte against her. Thus, there is observation about the refusal of summons and notices by the applicant. There is also application (Exh15) for setting aside the order to proceed exparte. This application came to be rejected on 15.01.2011 by observing that none present when called and the application is not supported with the written statement. This order has not been challenged by the applicant. Thus, admittedly matter proceeded exparte after rejection of the application to set aside the order to proceed exparte. The outcome of the said order is that the suit decided exparte by judgment dated 06.01.2013 without merit and opportunity to the applicant to put up her defence by filing written statement, cross examination the plaintiff and by adducing of the evidence in defence"
However, taking into consideration the decision of the Apex Court in case of Esha Bhattacherjee vrs. Managing Committee of Reghunathpur Nafar Academy and others, reported in (2013) 12 SCC 649, it is held in paragraph Nos. 8 and 9 of the order that the application for setting aside the exparte order was decided exparte and the suit was also decided exparte. The applicant, therefore, could not get an opportunity to contest the proceedings. The Court has held that sufficient cause is made out for condonation of delay and hence, by imposing costs of Rs.5,000/, the delay caused has been condoned. The original plaintiff is, therefore, before this Court in this revision application.
5. The explanation seeking condonation of 764 days delay has already been reproduced. The case of the defendant was that no suit summons were duly served upon her at any point of time and she had no knowledge about the so called on going suit proceedings against her. The fact that the application for setting aside the order to proceed exparte was filed and that was dismissed on 15.01.2011, has not been disclosed in the application for condonation of delay. It is not the case of the defendant that thereafter she lost the track of the case till its decision on 06.01.2013. There is no explanation for delay from 06.01.2013 to 06.04.2015. The lower appellate Court had called the record of the trial Court and upon perusal of it, the finding is recorded that the defendant refused to accept the summons and the notice as per Exh8 and also did not allow to affix the copy of summ
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