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2022 Supreme(Bom) 1573
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
Rajesh S. Patil, J.
Bhimraj S/o. Nanaji Dusing - Applicants
Versus
The State of Maharashtra Through Collector, Aurangabad - Respondents
Civil Revision Application No. 10 Of 2022
Decided On : 08-12-2022
For the Applicants : Mr. S. P. Salgar.
For the Respondents: Mr. S. B. Pulkundwar, Mr. S. S. Wagh.
The main legal point established in the judgment is that blaming the advocate for the delay in filing an appeal is not sufficient to justify condonation of delay, and a plausible explanation for the delay is required.
Headnote:
Condonation of Delay - Civil Revision Application - Bombay Regulation Act, 1827 - [Conception Fernandes & Anr. Vs. Tasneem Shaikh (Mrs.) & Ors. reported in 2014 (5) ALL M.R. 751, Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others reported in 2013 (12) SCC 649, P. K. Ramachandran vs. State of Kerala and another reported in 1998 AIR SCW 2177] - The court rejected the application for condonation of delay of 4 years 7 months and 18 days in filing appeal, citing the lack of due diligence on the part of the applicants' advocate and the absence of a plausible explanation for the delay. The court referred to legal precedents to support its decision, emphasizing that blaming the advocate for the delay was not sufficient and that similar delays had not been condoned in previous cases.
Fact of the Case:
Respondent no. 2 filed a Petition under the provisions of Bombay Regulation Act, 1827 for issuance of Heirship Certificate. The petition was allowed by Civil Judge, Senior Division, Vaijapur, Dist. Aurangabad. Applicants filed a review petition and a separate suit, and later filed an appeal with an application for condonation of delay. The delay was attributed to the advocate's non-instructions and the time consumed in the review petition and suit. The District Judge rejected the delay condonation application, leading to the Civil Revision Application.
Finding of the Court:
The court found that the delay was not justified, as the applicants had already filed a review petition and a suit before filing the appeal. The court cited legal precedents to emphasize that blaming the advocate for the delay was not sufficient and that similar delays had not been condoned in previous cases.
Issues: The main issue was whether the delay in filing the appeal should be condoned, considering the reasons provided by the applicants.
Ratio Decidendi: The court's decision was based on the lack of due diligence on the part of the applicants and their advocate, as well as the absence of a plausible explanation for the delay. The court referred to legal precedents to support its decision, emphasizing that blaming the advocate for the delay was not sufficient and that similar delays had not been condoned in previous cases.
Final Decision: The Civil Revision Application was dismissed, upholding the District Judge's decision to reject the application for condonation of delay.
JUDGMENT :
CHALLENGE :
1. This Civil Revision Application is filed challenging an order dated 21.08.2021 passed below Exh. 1 in M.A.R.J.I. Application No. 38/2019, by District Judge-1, Vaijapur, Dist. Aurangabad, by which application for condonation of delay of 4 years 7 months and 8 days in filing appeal was rejected.
FACTS :
2. Respondent no. 2 had filed a Petition under the provisions of Bombay Regulation Act, 1827 for issuance of Heirship Certificate. The said petition was allowed by Civil Judge, Senior Division, Vaijapur, Dist. Aurangabad vide order dated 22.09.2014.
3. Applicants thereafter preferred a review petition challenging the order dated 22.09.2014 and the same was rejected on 24.02.2015. Applicants also filed suit being R.C.S. No. 144/2015 for a declaration of ownership and permanent injunction in respect of the same property.
4. Much thereafter, an appeal was filed by the applicants herein challenging the judgment and order dated 22.09.2014. Along with the said appeal, an application for condonation of delay of 4 years 7 months and 18 days was also filed. The grounds stated in the application for condonation of delay was that the delay was caused because the applicants had preferred review petition, so also they had preferred a civil suit and also that their advocate had not instructed them for preferring an appeal. However, the District Judge, Vaijapur, after hearing the parties rejected the delay condonation application by his order dated 21.08.2021. By the present Civil Revision Application, the order dated 21.08.2021 is being challenged.
SUBMISSIONS :
5. The learned advocate for the applicants argued that the delay has been caused due to non instructions of advocate in lower court and so also much time had consumed in preferring the review petition and civil suit. He further argued that he is placing reliance on the judgment in the case of Pattherao Narsu Patil Vs. Gangubai A. Lad and others reported in 2019 (3) Mh.L.J. 121. The ratio laid down therein is applicable to the present matter.
6. Learned advocate for the respondent opposed this application and submitted that the learned District Judge has dismissed the application for condonation of delay of 4 years 7 months and 18 days by a well reasoned judgment and order. No justifiable cause had been shown by the applicants. The applicants, in the meanwhile, had preferred review petition so also had filed a separate suit and after he was not able to secure any favourable orders, had preferred the appeal mischievously with a delay condonation application to support his contention. The advocate for the respondent relied upon the judgments in the case of Ramlal and others Vs. Rewa Coalfields Ltd., reported in AIR 1962 Supreme Court 361(1), State of Assam Vs. Gobinda Chandra Paul reported in AIR 1991 Gauhati 104(1) and Abhimanyu Rath Vs. Virendra Pandey reported in AIR 1978 Madhya Pradesh 112.
ANALYSIS : -
7. I have heard both the counsels and gone through the application for condonation of delay of 4 years 7 months and 18 days and the impugned order. The Application seeks condonation of delay on the ground of fault on the part of the counsel in the lower court for not advising to file an appeal, time consumed in preferring review petition so also in filing suit.
8. Taking into consideration the ground of applicants that their advocate in the lower court did not advise them to file an appeal, does not satisfy me since, at the relevant time, the applicants in consultation with his lawyer had preferred a review petition, which was rejected on 24.02.2015 and much thereafter the Condonation of Delay Application and the appeal was filed on 12.07.2019.
9. The Supreme Court in the case of Conception Fernandes & Anr. Vs. Tasneem Shaikh (Mrs.) & Ors. reported in 2014 (5) ALL M.R. 751, held in paragraph nos. 14, 15 and 16 thus :
“14. A party can of course say, he being not a legal expert, would not know immediately that decision of his Advocate is not sound and so he would not be in
