The Bombay High Court rejected a civil application seeking restoration of a first appeal dismissed for non-prosecution. The Court held that mere lawyer's mistake or lack of deposit receipts regarding interim compensation is insufficient to exercise discretion for condoning the delay.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.945 OF2007
IN
FIRST APPEAL NO. 1583 OF 1996
Motichandra Raghunath Ahir
@ Yadav.
...Applicant.
Vs.
Radhabai Krishna Sawant & Anr....Respondents.
Mr. S.W.Kulkarni for the applicant.
Ms. V.R.Kalekar for respondent No.1.
CORAM : ANOOP V. MOHTA,J.
DATED : 18th September, 2007
P.C.
1. The applicant is the original defendant No.2,
respondent No.1 is the original plaintiff, and
respondent No.2 is the original defendant No.1.
2. Respondent No.1 filed short cause suit No. 5380
of 1979 in the Bombay City Civil Court at Bombay
against respondent No.2 and the appellant for a
declaration that the defendants in the said suit have
no right, title and interest in respect of business
known as Prince Tailor and suit premises viz. Shop
No. 5 situate at Sawant House, 168, Swadeshi Mill
( 2 )
Road, Chunabhatti, Kurla, Bombay-400 070, and also for
possession of the said premises.
3. On 11/ 21 September, 1996 the suit decreed by the
learned Civil Judge, City Civil Court, Bombay. First
appeal No. 1583 of 1996 filed by respondent No.2
challenges the said judgment and decree. On
4/11/1996, this Hon’ble Court, , by order dated 4th
November, 1996 issued Notices and also stay the
execution.
4. On 03/09/1997, First appeal dismissed for failure
on the part of the appellant to serve respondent No.2
in herein, for non-removal of office objections.
Civil Application No. 776 of 1998 filed by the
appellant for restoration of first appeal. On
12/03/1998 the first appeal was restored. On
23/03/1998 the first appeal was admitted.
5. On 16/03/1999 Civil Application No. 6750 of 1996
filed by the Appellant for stay of decree heard and
finally disposed of by this Court. This Hon’ble Court
directed the appellant to pay an amount of Rs.375/- on
or before 10th of every month from April, 1999 in the
Bombay City Civil Court at Bombay towards compensation
( 3 )
for suit premises; further restrained the appellant
from creating third party interest in the suit
premises; further directed the Appellant to file an
undertaking within three weeks from 16th March, 1999
stating therein that if he loses in the First Appeal
he would hand over vacant and peaceful possession of
the suit shop to Respondent No.1.
6. On 08/04/1999, the appellant filed undertaking as
directed by this Hon’ble Court and also started paying
the compensation as directed by this Hon’ble Court.
7. In the intervening period respondent No.1 filed
the execution application No. 551 of 1999 in the
Bombay City Civil Court at Bombay for execution of the
decree.
8. On 08/02/2002, this court, passed a conditional
order directing the Advocate for appellant to file
paper book within 8 weeks from the date of passing the
order. As the said order was a common conditional
order and as the Advocate for the appellant missed the
matter due to over sight, the aforesaid matter stood
dismissed for want of prosecution.
( 4 )
9. On 14/10/2004, notice issued by the Registrar,
Bombay City Civil Court, Bombay to the Advocate for
the appellant calling upon him to show cause as to why
writ of possession under Order 21 Rule, 35 of the CPC
should not be issued in the suit within a week from
14th October, 2004. On 27/10/2004, reply given by
appellant’s advocate to the show cause notice.
10. Civil application No. 945 of 2007 filed by the
appellant for restoration of the first appeal and
Civil Application No. 946 of 2007 filed by the
appellant for purpose of stay of the impugned decree.
On 19/01/2007, the writ of possession issued. On
07/02/2007, respondent No.1 tried to execute a decree
but the same could not be executed and respondent No.1
could not take forcible possession of the suit
premises.
11. On 09/02/2007, the advocate for the appellant
under his covering letter dated 9th February, 2007
sent copies of both the Civil Applications to
respondent No.1 as and by way of service upon
respondent No.1. The said envelope was returned
unserved with the postal remark "always door closed".
( 5 )
12. On 13/02/2007, the appellant’s advocate got the
papers in the above-mentioned first appeal produced
before this court. On 13th February, 2007 for the
purpose of grant of urgent relief i.e. protection of
his possession. This Court directed the advocate for
appellant to serve the respondents specially
respondent No.1 and the hearing of the matter was
adjourned to 20th February, 2007.
13. On 20/02/2007, respondent No.1 could not be
served before 20/02/2007 and was served only on
20/02/2007. This Court, was pleased to issue Rule on
both the Civil Applications making the same returnable
on 30/03/2007 again directing the advocate for
appellant to serve the respondents and file affidavit
of service. The advocate for the appellant served the
advocate for respondent No.1 with the copy of order on
12/03/2007. On 26/03/2007, affidavit-in-reply filed
by the advocate for respondent No.1 to the Civil
Applications filed by the appellant.
14. Civil Application No. 3847 of 2007 filed by the
appellant praying for permission to pay the arrears
pertaining to the compensation due and payable to
respondent No.1 in regard to the suit premises. On
( 6 )
07/08/2007, affidavit-in reply filed by the advocate
for respondent no.1 to the Civil Application No. 3847
of 2007.
15. The undisputed position on record is that, this
Court while passing the order on 08/02/2002, directed
the appellant to file paper book within eight weeks.
Though that was conditional order but that resulted
into dismissal of the matter for want of prosecution.
The facet that by order dated 16/03/1999 while
granting the stay, this court has directed the
appellant to pay amount of Rs.375/- on or before 10th
of every month from April, 1999 in the Bombay City
Civil Court at Bombay towards compensation for suit
premises just cannot be overlooked. It means when the
matter was listed in the year 2002 in view of the
order referred above the applicant ought to have
completed the order of stay by depositing the monthly
amount. In this background it is difficult to accept
the contention as raised and basically for want of
material on record to justify that appellant was
depositing the money even in the trial Court as
directed. The obligation of such nature itself means
requirement of due diligence by all sides the
appellants as well as the advocates. The fact remains
( 7 )
that the appellant has been in possession without
making the said payment.
16. When the notice received by the applicant in the
year 2004 under Order 21 Rule 35 of C.P.C., the
appellants moved this application for restoration.
There is nothing to justify on record that since 1999
to 2004, the applicant was under bonafide mistake that
the matter in question still pending in the High
Court.
17. The fact remains that on the basis of another
application, this court has further stayed the
execution proceedings. The applicant has been
enjoying the said possession of the suit premises and
they are also making the said payment.
18. The learned counsel appearing for the appellant
has strongly relied on
1. Miss Priya Vs. S.Gurcharan Singh, 2000 A.I.H.C. 2608 (Jammu & Kashmir High Court).
2. R. Muthammal Vs. R.Thangavel, 2000 A.I.H.C.
( 8 )
2609 (Madras High Court).
3. Sangramappa S/o Sambhoji Vs. Shankarappa S/o. Kanteppa Biradar, 2001 A.I.H.C., 484 (Karnataka High Court).
4. V.K.Shivananda S/o Virupakshappa Vs. The Regional Transport Officer, Davangere, 2001, A.I.H.C. 485 (Karnataka High Court)
5. U.P.State Road Transport Corporation Vs. Kedar Singh, AIR 1991, Allahabad 317.
6. Shenectady Herdilla Ltd. Vs. Banibai Dhondu Sutar, 2005(4) ALL MR 278.
7. Madhya Pradesh Industrial Development Corpn. Vs. The Mumbai District Central Co-Op. Bank Ltd. 2005(4) ALL MR 281.
8. Pratapchand Lakhamaji Jain Vs. Smt. Lilabai Krishanath Surve, 1998(4) ALL MR 426.
9. Oil & Natural Gas Commission now called Oil & Natural Gas Corporation Ltd. Vs. McDermott
( 9 )
International INC., 1998 (4) ALL MR 430.
. Above cases have been relied upon to support his
case that for fault of the lawyer or advocate, the
litigant should not suffer and in such cases the delay
need to be condoned.
19. In Sangramappa (Supra), there was delay of 809
days and the applicant was of 70 years of age. In
U.P. State Road Transport Corporation, (Supra) the
mistake of counsel or his office though taken note of
but delay was nominal. In Shenectady Herdilla Ltd.
Vs. Banibai (Supra) the Division Bench of this Court
has condoned the delay of four years and one month in
filing the appeal. That was the land acquisition
proceeding.
20. The reliance on Apex Court decision in Mata Din
Vs. A. Narayanan, AIR 1970 SC 1953 is of also no
assistance. In that case mistake was committed by the
lawyer, and filed the suit in the wrong court. There
was no error on counsel part or malafide motivated as
recorded in the said judgment and the delay was also
( 10 )
accordingly considered while observing "mistake of
counsel" will not in every case sufficient ground to
condone the delay.
21. To condoned the delay, the court needs to
exercise its discretion. The Discretion should be
exercised only after considering the facts and
circumstances of each case. While exercising the
discretion the Court cannot condone the delay on the
sympathetic grounds. The satisfactory requirement on
record is a must. ( D.Gopinathan Pillai Vs. State of
Kerala 2007 AIR SCW Kerala 4713 )
22. In the present case also nothing has been shown
to demonstrate basically the conduct as recorded above
of not filing the deposit receipts of the arrears
though ordered in the year 1999. Mere averments of
regular deposit without filing any receipt or any
material on record cannot be equated with all
principle of "Sufficient ground" to condone the delay.
The Court would definitely need to consider the facts
and material placed on record and or at this
undisputed position, the judgments, therefore, as
cited by the learned counsel appearing for the
appellants in support of this application of
( 11 )
condonation of delay on the foundation of so called
mistakes committed by the counsel and or its clerk and
or bonafide mistakes of the applicant, in the facts
and circumstances of the case, and for want of
material, is unacceptable.
23. Resultantly, the civil application is rejected.
(ANOOP V. MOHTA, J.)
3 issues framed by the court
Whether the delay in filing the first appeal can be condoned on the ground of mistake by the counsel.
Whether the appellant discharged the obligation of paying monthly compensation towards suit premises deducted from the stay order.
Whether satisfaction of required facts exists on record to justify condonation of delay.
Colour shows how this judgement treated each authority
Miss Priya Vs. S.Gurcharan Singh, 2000 A.I.H.C. 2608 (Jammu & Kashmir High Court)Referred¶44
R. Muthammal Vs. R.Thangavel, 2000 A.I.H.C. 2609 (Madras High Court)Referred¶45
Sangramappa S/o Sambhoji Vs. Shankarappa S/o. Kanteppa Biradar, 2001 A.I.H.C., 484 (Karnataka High Court)Referred¶48
V.K.Shivananda S/o Virupakshappa Vs. The Regional Transport Officer, Davangere, 2001, A.I.H.C. 485 (Karnataka High Court)Referred¶49
U.P.State Road Transport Corporation Vs. Kedar Singh, AIR 1991, Allahabad 317Distinguished¶50
Shenectady Herdilla Ltd. Vs. Banibai Dhondu Sutar, 2005(4) ALL MR 278Distinguished¶51
Madhya Pradesh Industrial Development Corpn. Vs. The Mumbai District Central Co-Op. Bank Ltd. 2005(4) ALL MR 281Referred¶52
Pratapchand Lakhamaji Jain Vs. Smt. Lilabai Krishanath Surve, 1998(4) ALL MR 426Referred¶53
Oil & Natural Gas Commission now called Oil & Natural Gas Corporation Ltd. Vs. McDermott International INC., 1998 (4) ALL MR 430Referred¶54
Mata Din Vs. A. Narayanan, AIR 1970 SC 1953Distinguished¶59
D.Gopinathan Pillai Vs. State of Kerala 2007 AIR SCW Kerala 4713Explained¶63
Motichandra Raghunath Ahir @ Yadav
Radhabai Krishna Sawant
Anoop V. Mohta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court