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2018 Supreme(Bom) 673
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
MANISH PITALE, J.
Maharashtra State Warehousing Corporation – Appellant
Versus
Sudhadevi W/o Ramakant Loiya – Respondent
Second Appeal (SA) No. 23 of 2018
Decided On : 04-05-2018
For the Appellant : Shri N.R. Saboo
For the Respondent: Shri H.N. Verma
Headnote:
Civil Procedure Code,1860 - Section 152 - Order 41 - Rule 1 - Indian Limitation Act,1963 - Section 5 - Court Fee - Claim discretionary - Court of Civil Judge Senior Division being an application Civil Procedure for determination of profit- This application was contested appellant/Corporation- By judgment and order trial Court partly allowed said application holding that appellant/Corporation was liable to pay amounts towards profit in terms of operative order trial Court directed that respondents were pay required court fee stamps for decided amount Civil Procedure for correction of clerical/typographical error in aforesaid judgment and order passed by trial Court- It was contended that there had been a mistake in clause operative part of aforesaid judgment and order and that certain words were required to be replaced by appropriate words in terms of what had been in body of said judgment- This application was allowed trial Court and corrections as sought by respondents were directed to be incorporated in judgment and order - Upon such correction being made and respondents depositing requisite court fee stamps in terms of clause corrected judgment and order decree was drawn by trial Court –Held, Court has drawn adverse inference by proceeding on basis that appellant/Corporation did not do anything and that it remained dormant without appreciating that no decree was actually drawn by trial Court finding rendered by trial Court that appeal period was long over even before application for correction of order was filed by respondents also not based on proper appreciation of facts and law in present case period of limitation could not be said to have commenced from because respondents themselves had not paid requisite court fee and decree was not drawn by trial Court- This demonstrates erroneous approach adopted by appellate Court rendering its findings perverse contention raised on behalf of respondents that payment of court fee was relevant only for execution of decree and not for filing of appeal is based on failure to appreciate effect of Order Code of Civil Procedure (Bombay Amendment) concerning mandatory requirement of placing a copy of decree along with memorandum of appeal while approaching appellate Court- In this context it becomes clear that judgments on which reliance has been placed on behalf of respondents does not further their case in defending impugned order passed by appellate Court Even assuming that limitation period commenced as contended by respondents facts and circumstances of present case show that there was sufficient cause shown by appellant for condonation of delay- appellant could not be said to be callous and application for condonation of delay deserved to be allowed - Appeal disposed
MANISH PITALE, J.
1. By this appeal, the appellant/Maharashtra State Warehousing Corporation has challenged the order dated 24.08.2017 passed by the Court of District Judge, Bhandara (appellate Court) in MJC No. 92 of 2015, rejecting an application for condonation of delay filed by the appellant in preferring appeal before the said Court.
2. The appellant/Corporation was a tenant in suit premises bearing House No. 574, Village Wardhi, Bhandara Road, Tahsil and District Bhandara. The respondents had filed a suit for possession and arrears of rent against the appellant/Corporation in respect of the said suit property. The suit was decreed in favour of the respondents and the appellant/Corporation was directed to vacate the suit property, against which, it had filed an appeal.
3. Thereafter, the respondents filed Special Mesne Profits Case No. 01 of 2004 before the Court of Civil Judge, Senior Division, Bhandara (trial Court) being an application under Order 20 Rule 12 of the Code of Civil Procedure for determination of mesne profit. This application was contested by the appellant/Corporation. By judgment and order dated 11.11.2011, the trial Court partly allowed the said application holding that the appellant/Corporation was liable to pay amounts towards mesne profit in terms of the operative order. The trial Court directed that the respondents were to pay required court fee stamps for the decided decretal amount.
4. On 07.08.2012, the respondents filed an application under Section 152 of the Code of Civil Procedure for correction of clerical/typographical error in the aforesaid judgment and order passed by the trial Court. It was contended that there had been a mistake in clause (3) of the operative part of the aforesaid judgment and order dated 11.11.2011 and that certain words were required to be replaced by appropriate words, in terms of what had been held in the body of the said judgment. This application was allowed on 18.04.2014 by the trial Court and the corrections as sought by the respondents were directed to be incorporated in the judgment and order dated 11.11.2011. Upon such correction being made and the respondents depositing the requisite court fee stamps in terms of clause (5) of the corrected judgment and order dated 11.11.2011, decree was drawn by the trial Court on 07.11.2014.
5. In the meantime, the appellant/Corporation and the respondents entered into negotiations for settlement of their dispute in appeal (Regular Civil Appeal No. 43 of 2012) that arose and which was pending before the Court of District Judge, Bhandara from the decree for possession of the suit property passed in favour of the respondents. But, the Judge before whom the mediation was under taken, submitted a report on 13.02.2015, recording that the attempts at settlement had failed between the parties. Thereafter, the appellant/Corporation applied on 16.02.2015 for certified copy of the judgment and decree passed by the trial Court. Thereafter, on 13.03.2015, the appellant/Corporation filed an appeal before this Court. According to the appellant/Corporation, there was no delay in preferring the appeal and, therefore, the appeal memo was not accompanied by an application for condo nation of delay. But, on an objection raised by the Registry of this Court, the appellant/Corporation filed application for condo nation of delay in preferring the appeal before this Court. The delay was calculated at 1128 days, as the date of 11.11.2011 was taken as the date of the judgment and decree under challenge. The said application for condo nation of delay was filed on 25.03.2015.
6. Upon enhancement in pecuniary jurisdiction of the District Court, the said appeal filed by the appellant/Corporation stood transferred to the appellate Court (Court of District Judge, Bhandara). The appellate Court has passed the impugned order dated 24.08.2017 on the said application, holding that the appellant/Corporation failed to make out sufficient cause for condo nat
