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2022 Supreme(Bom) 1681
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.
RAJESH S. PATIL, J.
Ramesh Govinda Mali (Gorade) – Appellant
Versus
Raosaheb Punjaba Karale (Died) – Respondent
Appeal From Order No. 63 of 2017
Decided on : 17-10-2022
Advocate Appeared:
For the Appellant :Mr. Ajit D. Kasliwal, Advocate
For the Respondent:Mr. A. D. Gadekar, Mr. B.G. Londhe, Advocate
The main legal point established in the judgment is that delay in filing a restoration application can be condoned to prevent miscarriage of justice, even without a formal application for condonation of delay.
Headnote:
RESTORATION - Civil Appeal - Order 41 Rule 19 of the Code of Civil Procedure - [Order 41 Rule 19 of CPC] - The court dismissed the restoration application on the technical ground of no prayer for condonation of delay, despite finding that the applicants were prevented by sufficient cause from attending the court proceedings. The court referred to the judgment in the case of B.S. Sheshagiri Setty and others Versus State of Karnataka and others, where it was held that delay can be condoned even on an oral application to prevent miscarriage of justice caused to the litigant.
Fact of the Case:
The applicants challenged a judgment and decree but failed to appear for the hearing, resulting in dismissal of the appeal. They filed a restoration application, citing their reliance on their lawyer and delay due to natural calamity. The court dismissed the application on technical grounds.
Finding of the Court:
The court found that the applicants were prevented by sufficient cause from attending the court proceedings, but dismissed the restoration application due to the lack of a prayer for condonation of delay.
Issues: The main issue was whether the restoration application should be allowed despite the technical ground of no prayer for condonation of delay.
Ratio Decidendi: The court relied on Order 41 Rule 19 of CPC, which allows restoration if the applicant proves sufficient cause for non-attendance. Additionally, the court referred to the judgment in the case of B.S. Sheshagiri Setty and others Versus State of Karnataka and others, where it was held that delay can be condoned even on an oral application to prevent miscarriage of justice caused to the litigant.
Final Decision: The Appeal from Order was allowed, and the delay in filing the restoration application was condoned. The impugned judgment and order dismissing the restoration application were set aside, and the appeal was expedited for hearing.
JUDGMENT :
CHALLENGE : -
1. This Appeal from Order is filed challenging the Judgment and Order dated 25.10.2017 passed by the District Judge-1, Vaijapur thereby dismissing in default M.A.R.J.I. No. 5/2016 filed by the present applicants seeking restoration/re-admission of Reg. Civil Appeal No. 1/2015.
FACTS : -
2. The present applicants had challenged the judgment and decree passed in Reg. Civil Suit No. 157/96 by way of Reg. Civil Appeal No. 1/2015. When the said Reg. Civil Appeal came up on board for hearing, nobody turned up on behalf of the applicants and hence the appeal was dismissed in default on 11.12.2015.
3. The applicants herein thereafter filed M.A.R.J.I. No. 5/2016 on 27.01.2016 thereby praying that the appeal be re-admitted by an appropriate order and suitable order in the interest of justice be kindly passed. The said application was filed under the provisions of Order 41 Rule 19 of the Code of Civil Procedure [hereinafter referred to as ‘CPC’]. Respondents therein had filed their reply to the said M.A.R.J.I. and opposed the same. The District Judge-1, Vaijapur heard the parties and by it’s judgment and order dated 25.10.2017 dismissed the M.A.R.J.I. application holding that the applicants were prevented by sufficient cause from attending the court proceedings, but M.A.R.J.I. was not within limitation and no prayers for condonation of delay was made.
SUBMISSIONS : -
4. The advocate for the applicants argued that the result of dismissal of M.A.R.J.I. application in turn means that the applicants Reg. Civil Appeal No. 1/2015 is dismissed without hearing the applicants on merits. The learned advocate for the applicants prayed that the restoration application was filed immediately after the knowledge of the dismissal of appeal, however, there was a delay of 16 days. The applicants have very clearly stated in their application that the applicants had engaged a lawyer and they presumed that their advocate would inform them about the progress of the appeal. The applicants remain engaged in agriculture work as well as labour work for earning their livelihood. The financial position of the applicants is not sound because of natural calamity like insufficient rains and crops. The applicants were totally dependent upon their advocate for the court matter. Only after they heard about rumour in village about the dismissal of the appeal, they applied for certified copy and after receiving the same, they have preferred the M.A.R.J.I. application. The applicants further stated that they should not be punished due to the error of their lawyer.
5. The applicants further prayed that while they filed their M.A.R.J.I. Application, the Court Department did not raise any objection as regards the prayer for condonation of delay. So also, after filing of the M.A.R.J.I. application for setting aside the order of dismissal in default, the court took cognizance of the matter and notices were issued. The parties thereafter appeared in the proceedings through their respective advocates. It is further argued on behalf of the applicants that the litigant should not suffer due to the mistake on the part of the advocate.
6. The applicants also stated that once the court had recorded a finding that the applicants were prevented by sufficient cause from attending the court proceedings; then the M.A.R.J.I. application for restoring the appeal should have been allowed and the same should not have been dismissed on technical grounds.
7. The applicants have further argued that even the order dated 11.12.2015 dismissing the appeal in default could not have been passed as the appeal on that day was listed for taking steps only. It was further argued that the applicants had raised the grounds as stated under Order 41 Rule 19 CPC, hence the application should have been allowed.
8. The learned counsel for the respondents stated in the reply that although it is true that the appeal was at initial stage for taking steps and it was not for final hearing, the applicants
