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2017 Supreme(Bom) 199
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R.K. Deshpande, J.
Smt. Chhaya w/o Dattatray Aurangabadkar (Dead), through LR. Smt. Raju Prakash Umalkar – Appellant
Vs.
Shri Waman s/o Pundlik Bhaje – Respondent
Civil Application (CAO) No.1473 of 2015 In Misc. Civil Application Stamp No.15068 of 2015 In Second Appeal No.271 of 2011
Decided on : 14-02-2017
Advocate Appeared:
For the Appellant :Shri S.D. Deshpande, Advocate
For the Respondent:Shri J.M. Gandhi, Advocate
Important Point-The discretion to condone or not to condone the delay need to be exercised depending upon the facts and circumstances of each case and no straitjacket formula is available. In the absence of lack of bona fides, negligence, false case, the inclination of the Court will be to condone the delay upon proper explanation furnished.
Headnote:Civil Procedure Code, 1908-Order IX, Rule 4-Limitation Act, 1963, Section 5-Delayed application for restoration of suit.-Since delay in filing application for restoration of suit, explained sufficiently and is satisfactory hence application liable to allowed by condoning delay.
The reply denying the averments in the application sworn-in by the non-applicant/respondent-Waman s/o Pundlik Bhaje, without disclosing as to how he had personal knowledge of the illness of the counsel for the appellant, cannot be accepted. No doubt, that the averments in the application are somewhat vague, but should be taken to presume lack of knowledge of dismissal of the matter in default to the counsel and consequently to his client. The appellant is claiming ownership of 1239 sq. ft. of land on the basis of the decree passed for partition in regular Civil Suit No. 1225A/1959, and it cannot be said that he was not interested in prosecuting the matter. The delay caused in filing an application for restoration is sufficiently explained and Court satisfied that in the absence of lack of bona fides and negligence, the application makes sufficient cause for condonation of delay.
Limitation Act, 1963 - Section 5-Condonation of delay.-In condoning delay, Court has to adopt a practical and pragmatic approach rather than technical and pedantic.
In cases where the matter is dismissed for want of prosecution due to absence of the counsel engaged, normally it would be a fault on the part of the counsel and not of the client, who engaged the counsel to take the care of his matter. In such cases, the question of negligence or lack of bona fides on the part of the litigant does not at all arise and the presumption would be of the lack of knowledge of such order to the counsel and consequently to his client. Such presumption can be rebutted by showing the positive event or the evidence of such knowledge, if any by the non-applicant.
The period of limitation for claiming restoration in such cases shall start running from the date of knowledge of such order shown either by applicant or by the non-applicant, as the case may be, to determine the sufficient cause to condone delay. The dispute, if any about the date of knowledge will have to be determined on the basis of preponderance of probabilities.
A distinction has to be, therefore, understood between the cases where the condonation of delay is sought for restoration of the matter dismissed in default due to non-appearance of the counsel engaged and the cases where the condonation of delay caused in challenging the orders passed in presence of the counsel engaged. A litigant cannot be made to suffer for the default on the part of his counsel. On the contrary, filing of an appeal within a period of limitation and engaging the counsel to contest the matter, shows the interest of the client in prosecuting the matter, and there is no presumption that a litigant is not interested in prosecuting the matter, which is dismissed in absence of a counsel. Filing of an application for restoration shows the interest of the client to prosecute, and the Court will have to consider as to whether the explanation furnished is true, correct, bona fide and proper to constitute a sufficient cause.
It is well-settled that in condoning delay, the Court has to adopt a practical and pragmatic approach rather than technical and pedantic. The application has to be read as a whole to find out whether the explanation furnished covers the whole period, the condonation of which is sought. The discretion to condone or not to condone the delay need to be exercised depending upon the facts and circumstances of each case and no strait-jacket formula is available.
In the absence of lack of bona fides, negligence, false case, the inclination of the Court will be to condone the delay upon proper explanation furnished. Of course, creation of rights in favour of the opponent will have to be given due weightage.
“None present for the appellant.
The second appeal is dismissed in default.”
2. The appellant filed Misc. Civil Application Stamp No.15068 of 2015 on 4-8-2015 for restoration of appeal. Civil Application (O) No.1473 of 2015 was filed on 4-8-2015 for condonation of delay of 300 days caused in filing an application for restoration. Both these appeals are supported by the solemn affirmation duly signed by Shri Shrinivas s/o Devidas Deshpande, aged about 90 years, the learned counsel appearing for the appellant.
3. In the application for condonation of delay, it is an averment that on the date when the matter was listed before this Court on 9-9-2011, the counsel for the appellant was absent, as he was in the hospital undergoing angioplasty. It is further stated that the appellant is from Gondia and, therefore, he could not contact the counsel because of some domestic reasons.
4. Shri J.M. Gandhi, the learned counsel appearing for the respondent, opposed the application for condonation of delay placing reliance upon the following decisions of the Apex Court as well as of this Court :
1. AIR 1998 Bombay 176 [Laxman N. Divekar v. State of Maharashtra]
2. AIR 1998 Bombay 346 [Victor Albuquerque v. Saraswat Cooperative Bank Ltd. and others].
3. AIR 1998 SC 2276 [P.K. Ramachandran v. State of Kerala and another]
4. (2013) 14 SCC 81 [Basawaraj and another v. Special Land Acquisition Officer]
5. AIR 2014 SC 746 [Basawaraj and another v. The Special Land Acquisition Officer]
6. AIR 2014 SC 1612 [Brijesh Kumar and others v. State of Haryana and others]
7. 2015 (6) ABR 798 [Vasant Vithal Gawand v. Shantaram Tukaram Gawand and others]
5. Shri Gandhi submits that there is a delay of 3 years 10 months, approximately 1500 days, and the same has not been explained in the application. He further submits that the delay caused, shown in the application is of 300 days only and keeping in view the law laid down by the Apex Court in the aforesaid decisions, the application has to be dismissed on the ground that there is no explanation furnished for certain period of delay and no sufficient cause is made out to condone the delay.
6. In cases where the matter is dismissed for want of prosecution due to absence of the counsel engaged, normally it would be a fault on the part of the counsel and not of the client, who engaged the counsel to take the care of his matter. In such cases, the question of negligence or lack of bona fides on the part of the litigant does not at all arise and the presumption would be of the lack of knowledge of such order to the counsel and consequently to his client. Such presumption can be rebutted by showing the positive event or the evidence of such knowledge, if any by the non-applicant.
The period of limitation for claiming restoration in such cases shall start running from the date of knowledge of such order shown either by the applicant or by the non-applicant, as the case may be, to determine the sufficient cause to condone delay. The dispute, if any, about the date of knowledge will have to be determined on the basis of preponderance of probabilities.
7. The cases in which the orders are passed in presence of the counsel engaged, cannot be equated with the cases where the counsel was absent. In such cases, there would be a presumption of knowledge of the order to the client, who engaged the counsel, and the burden of proof about lack of knowledge, shall be upon the applicant, which will have to be discharged by leading positive evidence, either by filing an affidavit of the counsel engaged or examining him on oath or by showing the efforts which the client made to keep the track of the case by remaining in touch with the counsel in regular intervals. The explanation furnished after the date of knowle
