Dismissed

Padmabai Suryabhan Thoke v. Indubai Devidas Sable and Anr.

Bombay HC8 Apr 2013WP/830/2013

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged the District Judge's order condoning a six-year delay in filing a review application. The High Court held that the delay was satisfactorily explained by the respondent's inability to understand the lack of a possession decree due to legal advice and clerical errors, applying Section 151 and 152 CPC.

What did the court decide?

Writ petition dismissed with no order as to costs.

Padmabai Suryabhan Thoke Vs Indubai Devidas… — Civil Procedure and Limitation | Bombay HC (2013)

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WP830-13

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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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WRIT PETITION NO. 830/2013

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(PADMABAI SURYABHAN THOKE VERSUS INDUBAI DEVIDAS SABLE & ANOTHER)

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Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders

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Court's or Judge's orders

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- - - - Shri R.G. Kavimandan, counsel for the petitioner. Shri Abhay Sambre, counsel for the R-1.

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CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 8, 2013.

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By this petition, the petitioner impugns the judgment passed by the first appellate Court on 07.12.2012 allowing an application filed by the respondent no.1 for condonation of delay in filing the review application.

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The respondent no.1 is the original plaintiff. A suit was instituted by the respondent no.1 for permanent injunction. During the pendency of the suit, the respondent no.1 lost the possession and, therefore, by amending the plaint, a decree for possession was also sought. The trial Court dismissed the suit of the respondent no.1. The respondent no.1 preferred an appeal against the same. The learned District Judge, by the judgment dated 12.08.2005, allowed the appeal filed by the respondent no.1. It appears that in the operative part of the judgment dated 12.08.2005, a decree for possession was not granted in favour of the respondent no.1. It is the case of the respondent no.1 that she was not made aware of the fact that a decree for possession was not passed in her favour though the first appeal filed by her was allowed. Believing that the decree for possession was passed, the respondent no.1 filed execution proceedings bearing R.D. No.5 of 2009 to execute the decree. On legal advice, the respondent no.1, however, withdrew the execution proceedings and filed an

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WP830-13

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application for correction of the judgment and decree passed by the first appellate Court on 12.08.2005 under Section 151 and 152 of the Code of Civil Procedure. It is stated in the application filed by the respondent no.1 for condonation of delay that during the hearing of the application filed by the respondent no.1 under Section 151 and 152 of the Code of Civil Procedure, on 20.07.2012, the Presiding Officer of the Court pointed out to the counsel for the respondent no.1 that the remedy for the respondent no.1 was to file an application for review of the judgment dated 12.08.2005 or an appeal against the same. On being made aware that seeking review would be an appropriate remedy, the respondent no.1 filed an application for review along with the application for condonation of delay in filing the review application. Though the application was strongly opposed by the petitioner, the learned District Judge, by the impugned order dated 07.12.2012, allowed the application filed by the respondent no.1.

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It is submitted on behalf of the petitioner that the first appellate Court was not justified in condoning the delay of nearly six years in filing the application for review without considering that the respondent no.1 had failed to explain the dayto-day delay in filing the review application. It is submitted that the first appellate Court erroneously considered the merits of the matter while considering the application for condonation of delay. The learned counsel relied on the judgments of the Hon'ble Supreme Court reported in (2009) 2 SCC 667 ( State of Jharkhand & others Versus Ashok Kumar Chokhani & others ), AIR 1998 SC 2276 ( P.K. Ramchandran Versus State of Kerala & another ), 2011(4) Mh.L.J. 104 ( Lanka Venkateswarlu (dead) by LRs Versus State of A.P. & others ) and (2009) 3 SCC 525 ( Commission, Nagar Parishad, Bhilwara Versus Labour Court, Bhilwara & another ) to substantiate his submission.

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WP830-13

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On hearing the learned counsel for the parties and on a perusal of the application for condonation of delay as also the impugned order, it appears that the first appellate Court was justified in condoning the delay in filing the review application subject to payment of costs. Though the first appellate Court while condoning the delay made a reference to the merits of the case, it appears from a reading of the application for condonation of delay that the respondent no.1 had sufficiently explained the delay in filing the review application. Though the reason recorded by the first appellate Court for condoning the delay may not be justified, the ultimate decision of the first appellate Court of condoning the delay is just and proper. The respondent no.1 had sought a decree for possession but, the same was not granted by the first appellate Court in spite of the fact that the first appeal filed by the respondent no.1 was allowed on 12.08.2005. The respondent no.1 did not notice that a decree for possession was not passed by the first appellate Court and, hence, erroneously filed the execution proceedings for possession. However, on noticing that a decree for possession was not passed, the respondent no.1 withdrew the execution proceedings and in stead filed an application under Section 151 read with 152 of the Code of Civil Procedure. It is the case of the respondent no.1 that the Presiding Officer of the Court, however, pointed out the counsel for the respondent no.1 that the proper remedy for the respondent no.1 was to file a review application. In this background, the respondent no.1 filed a review application. The delay caused in filing the review application has been satisfactorily explained by the respondent no.1 in the application for condonation of delay. The aforesaid statements of facts in the application for condonation of delay clearly show that there was sufficient cause for not filing the review application within the prescribed period of limitation. The respondent no.1 has stated in the application that the respondent no.1 being a rustic

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WP830-13

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lady was not made aware about the apparent mistake in the judgment of the first appellate Court dated 12.08.2005 by the counsel. The respondent no.1, therefore, under a bona fide impression believed for long that a decree of possession was granted in her favour. In the facts and circumstances of the case since the delay was satisfactorily explained by the respondent no.1, the delay caused in filing the review application needs to be condoned. The first appellate Court rightly condoned the same. This is not a case where the delay could be condoned only on the basis of the merits of the matter and the petitioner has made out sufficient cause for condonation of delay. The judgments reported in (2009) 2 SCC 667 ( State of Jharkhand & others Versus Ashok Kumar Chokhani & others ), AIR 1998 SC 2276 ( P.K. Ramchandran Versus State of Kerala & another ), 2011(4) Mh.L.J. 104 ( Lanka Venkateswarlu (dead) by LRs Versus State of A.P. & others ) and (2009) 3 SCC 525 ( Commission, Nagar Parishad, Bhilwara Versus Labour Court, Bhilwara & another ) and relied on by the counsel for the petitioner cannot be made applicable to the facts of the case.

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In the result, the writ petition is dismissed with no order as to costs.

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JUDGE

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APTE

Padmabai Suryabhan Thoke v. Indubai Devidas Sable and Anr.

Case brief

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Padmabai Suryabhan Thoke v. Indubai Devidas Sable and Anr.

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