A single judge dismissed a writ petition challenging the dismissal of an application for condonation of delay in filing a first appeal. The petitioner failed to prove sufficient cause or diligence for the three-year delay.
Application for condonation of delay in filing the first appeal was dismissed; writ petition dismissed.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2307 OF2007
Anwar Ahmed Khalil Ahmed
...Petitioner.
Vs.
Abdul Haque Sirajuddin Qureshi...Respondent.
Mr. R.D.Suryawanshi for the petitioner.
Ms. A.G.Bhaktwani for the respondent.
CORAM : ANOOP V. MOHTA,J.
DATED : 3rd October, 2007
JUDGMENT :-
1. By this petition dated 29th March, 2007, challenge
has been made to the order dated 6th March, 2004
passed by 2nd Additional District Judge, Thane,
whereby the petitioner’s (original defendant),
application for condonation of delay in filing the
first appeal, was dismissed. On 10th September, 2007
none appeared for respondent when the matter was
called out and therefore, after hearing the
petitioner, the present petition was allowed. Later
on immediately, the learned counsel appearing for the
respondent appeared and requested for re-hearing of
the matter. As the order was not signed, and as the
request was made immediately on the same day, the
matter was kept for re-hearing.
( 2 )
2. To avoid the multiplicity of the proceedings, I
re-heard the matter.
3. After hearing both the parties, the earlier order
though announced but was not signed of allowing the
petition has been recalled. Admitted facts on record
are that the judgment and decree passed and
regularized in R.C.S. No. 285/1987 by the Civil
Judge, Junior Division, Bhiwandi dated 17/03/1997, as
the defendant inspite of the opportunities available,
failed to file written statement and not contesting
the matter.
4. Before the District Judge, Thane, therefore, an
application for condonation of delay was preferred
mainly on the ground that the compromise/ settlement
talks were going on between the parties and therefore,
the appellant-petitioners neither filed written
statement nor contested the matter and therefore,
ex-parte decree came to be passed.
5. The learned Judge after considering the rival
contention as well as material placed on record, held
that the applicant failed to establish the sufficient
( 3 )
cause for condoning the delay in filing the appeal by
observing in para 9 and 10 as under:-
"9. Even as per his pleading, the notice of execution
proceeding was served on him in July, 2002, however,
the present application is filed in January, 2003.
The reason assigned by the applicant is that he had
been to his native place for some urgent work and when
he returned to Bhiwandi, he contacted the Advocate and
filed the application.
10. It is necessary to mention here that there is no
mentioned in the application what was his urgent work
and for how much period, he had been to his native
place and only vague allegations are made which also
does not find support from any document or other
evidence that he was not in Bhiwandi and had been to
his native place for some period. Thus this stand
also clearly indicate inaction on the part of the
applicant. Reliance has been placed by the learned
counsel for the opponent on the authority AIR 1998
S.C. 2276, in order to show that the courts have no
power to extend period of limitation on equitable
grounds. He further relied on the authority 2002(2)
ALL MR 776 on the point that Appellant seeking
( 4 )
condonation of delay must show diligence on his part.
He further relied on the authority AIR 1981 S.C.
1921, in order to show that strong case on merits, not
a ground for condonation of delay. Further he relied
on the authority 1999(4) ALL MR 57 where it is held
that explanation for delay was not bonafide and no
sufficient cause for condonation of delay was made
out. He further relied on the authority 2002(2) ALL
MR 778. The principles laid down in the said
authority certainly help to the submission of the
learned counsel for the opponent."
6. The learned counsel appearing for the respondent
has strongly relied on Shri. Nivruti G. Ahire Vs.
State of Maharashtra & Ors. 2007(4) ALL MR 347. The
decision of the Bombay High Court referring to Section
5 of the Limitation Act especially on the extract of
para 14, which is as under:-
."S. 5 - If sufficient cause is not proved
nothing further has to be done: the
application for condoning the delay has to
be dismissed on that ground alone. If
sufficient cause is shown then the Court
has to enquire whether in its discretion
it should condone the delay. This aspect
of the matter naturally introduces the
consideration of all relevant facts and it
is at this stage that diligence of the
party or its bonafides may fall for
consideration; but the scope of the
( 5 )
enquiry while exercising the discretionary
power after sufficient cause is shown
would naturally be limited only to such
facts as the Court may regard as
relevant."
7. In that case the Division Bench has not condoned the delay of 108 days in filing the review petition.
8. Admittedly in the present case, there is no reason
and or sufficient material to justify the delay even
in filing the present writ petition. The impugned
order is of 06/03/2004, the writ petition is of dated
29th March, 2007. The suit is of the year 1987. The
ex-parte decree is dated 17/03/1997. The appeal and
application for condonation of delay in question filed
on 2nd January, 2003. There is no material to accept
bare allegation that the parties were settling the
matter. Therefore, in good faith never contacted and
enquired about the suit. There is no positive
averments of settlement or compromise though
discussion was going on.
9. Taking all above facts and law into consideration,
I am inclined to accept the submission as raised by
the learned counsel appearing for the respondent and
as there is sufficient case made out, I am, therefore,
inclined to reject the present writ petition, as there
( 6 )
is no case made out by the petitioners to condone the
delay.
10. In view of the judgment in Shri Nivrutti (Supra),
based on the various Supreme Court Judgments, in view
of the facts and circumstances of the case as the
sufficient facts are not proved, I am inclined to
exercise the discretion, after hearing both the
parties, in favour of the respondent. The
petitioners-appellant was not diligent and not proved
his bonafide and failed to show the sufficient cause.
11. Therefore, the present petition is dismissed.
3 issues framed by the court
Whether the petitioners established sufficient cause to condone the delay in filing the writ petition?
Whether the grounds of settlement talks and absence constitute sufficient cause for condonation of delay?
Whether the petitioner demonstrated diligence and bona fides to justify the delay?
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
Anwar Ahmed Khalil Ahmed
Abdul Haque Sirajuddin Qureshi
ANOOP V. MOHTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court