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2024 Supreme(Online)(Bom) 5263
BOMBAY HIGH COURT
BHARAT P. DESHPANDE, J
MALINI VITHAL RAIKAR AND 2 ORS – Appellant
Versus
JOSE FELIX PIEDADE DA COSTA (EXPIRED) AND 2 ORS – Respondent
WP 722 / 2023
Mr. Ashwin D. Bhobe, Mr. Sanman R. Keny, Mr. Manguirish Angle
The court ruled that the reasons for delay in filing an appeal were merely excuses and did not constitute sufficient cause for condonation, emphasizing the need for diligence in legal representation.
Headnote:(A) Code of Civil Procedure, 1908 - Section 5 - Condonation of delay - The petition challenges the rejection of the condonation of delay application for filing an appeal against an eviction order dated 02.05.2019, which was filed after more than 900 days - The Petitioners claimed lack of communication with their Advocate led to their ignorance of the eviction order. (Paras 3, 4, 5, 6, 8, 9)
(B) Legal representation - The court emphasized the importance of diligence on the part of the Petitioners, noting that they were duly served with notices and failed to engage another Advocate after their original Advocate withdrew. (Paras 10, 12, 21)
(C) Sufficient cause - The court distinguished between an 'explanation' and an 'excuse', ruling that the reasons provided by the Petitioners for the delay were merely excuses and did not constitute sufficient cause for condonation. (Paras 24, 25, 26)
(D)
Findings of Court:
The court found that the Petitioners had knowledge of the eviction order and failed to act diligently, leading to the dismissal of the petition. (Paras 22, 29) (E)
Issues: The main issues included whether the Petitioners had sufficient cause for the delay in filing the appeal and the adequacy of their explanation regarding their Advocate's withdrawal. (Paras 8, 10, 24) (F)
Ratio Decidendi: The court ruled that the reasons provided by the Petitioners were insufficient to justify the delay, emphasizing the need for a clear distinction between an explanation and an excuse. (Paras 24, 26) (G)
Result: The petition stands dismissed with no costs.
JUDGMENT
1. Rule. Rule is made returnable forthwith.
2. Heard finally with consent.
3. The challenge in the present petition is to the rejection of condonation of delay application filed by the Petitioner in filing an appeal. The impugned order is dated 14.07.2023, whereby the learned District Judge refused to condone the delay of more than 900 days in accepting the appeal, thereby challenging the order of eviction passed by the Rent Controller on 02.05.2019.
4. Mr. Bhobe, learned counsel appearing for the Petitioners would submit that the Petitioners were represented by an Advocate before the Rent Controller, however, there was no communication between the Advocate and the Petitioner and accordingly, the Petitioners were not represented properly before the Rent Controller. He submits that the Petitioners were not at fault and accordingly, an ex-parte order was passed directing eviction of the Petitioner by the Rent Controller on 02.05.2019.
5. Mr. Bhobe would further submit that the Petitioner got knowledge of the order of eviction dated 02.05.2019 only when they received a notice in the execution proceedings filed in the year 2021. The Petitioner immediately filed an application for condonation of delay in preferring an appeal and explained the grounds, sufficient for the purpose of condoning the delay.
6. Mr. Bhobe submits that the Petitioner had no knowledge of the order passed by the Rent Controller dated 02.05.2019 and accordingly, this was a sufficient ground for the purpose of condoning the delay
7. Mr. Bhobe further submit that the learned Trial Court misconstrued the facts and observed that the certified copy attached to the memo of appeal shows about the knowledge of the Petitioners in the year 2019 itself. He submits that the said certified copy was infact collected by the Petitioner from the execution application which was served upon them in the year 2021. What the Petitioner did is only attaching such certified copy to the appeal memo, however, the learned Trial Court considered that the certified copy was applied by the Petitioners and accordingly, held that the Petitioners had knowledge of the judgement or eviction in August 2019 itself.
8. Mr. Bhobe would submit that there was no deliberate attempt on the part of the Petitioners to file the appeal late as an adverse order was passed against them and the Petitioners are facing the sword of eviction from the premises. He submits that the ground mentioned in the application ought to have been considered liberally inorder to give an opportunity to the Petitioners to argue the appeal on merits. He then submits that by rejecting the condonation of delay application the valuable right of the Petitioner is taken away.
9. Mr. Bhobe placed reliance on the case of Esha Bhattacharjee Vs. Managing Committee, (2013) 12 SCC 649 and Sheo Raj Singh (deceased) through Lrs. Vs. Union of India & Another, (2023) 10 SCC 531 to buttress his submissions regarding explanation of sufficient cause and not only the excuse.
10. Per contra, the learned counsel appearing for the Respondent Mr. Angle would submit that the eviction proceedings were filed on the premise that the tenanted portion was sub-let to the Petitioner by the Respondent No. 3. He submits that the Petitioners though duly served in the proceedings, never led any evidence in support of their case. Mr. Angle would submit that the record of Rent Controller would go to show that the Advocate engaged by the Petitioners withdrew his appearance by issuing a legal notice which was duly served on the Petitioners and such documents were placed in the file.
11. Mr. Angle would submit that the reasons in the application for delay are false and concocted to the knowledge of the Petitioners and they unnecessarily blamed their Advocate who was perfectly justified in filing an application for withdrawal of appearance by issuing notices as he was not receiving instructions.
12. Mr. Angle would submit that there is no dispute that the Petitioners we
