Sunday, 17 April 2016

When court can condone delay of Nine years in filing appeal ?


 The learned Counsel for the applicants has
placed reliance on the judgment of the Supreme
Court in case Oriental Aroma Chemical Industries
Ltd. (supra) and submits that the respondent No.
1 has not approached the District Court with
clean hands and, there is inordinate delay of
nine years and eleven months in filing the
appeal. Therefore, this Court may allow the
revision application. It is true that in the
given case, the delay of few days in absence of
sufficient cause cannot be condoned. However,
if sufficient cause is disclosed in the
application for condonation of delay, in that
case, the Court can always exercise discretion
and condone delay. In the facts of the present
case, I do not think that the respondent has not
approached the Court with clean hands. The

respondent No.1 has disclosed all the relevant
facts before the appellate Court and also before
this Court. The District Court, upon
appreciation of the evidence, found that the
address of respondent No.1 mentioned in the suit
summons at village Satara is not correct and the
applicant has proved that he is residing since
1994-95 at Peer Bazar, Osmanpura, Aurangabad.
The said ground goes to the root of the matter
and, therefore, the District Court has rightly
appreciated the contention of the respondent
No1. and the evidence brought on record and,
then condoned the delay. Ultimately, the right
of appeal is a statutory right and the matter
relates to immovable property which has nonagricultural
potentiality.
The District Court has also accepted the
contention of the respondent No.1 that he had
not engaged advocate. The District Court to
satisfy itself, summoned the record from the
trial Court and found that there is nothing in
the said record which would show / demonstrate

that the respondent No.1 did engage the advocate
to represent him. Therefore, in the facts of
the present case, none of the judgments, cited
by the learned Counsel for the applicants in
order to show that there is inordinate delay and
the same should not have been condoned, has
application. In the peculiar facts of this
case, the District Court has allowed the parties
to lead evidence and upon appreciation of such
evidence, reached to the conclusion that the
address in the suit summons was incorrect and
also the suit summons was not served upon the
respondent No.1. The District Court has also
made some comments about the conduct of the
applicants for not taking steps for long eight
years to get the decree executed, except filing
applications for issuance of summons.
So far as the another contention of the
applicants as to how the respondent No.1 came to
know about filing of such suit is concerned, the
respondent No.1 in his evidence has stated that

when his neighbourer told him that a Bailiff
from the Court was inquiring about him, he came
to be know about the said proceedings and,
thereafter, the Bailiff came to serve summons of
the execution proceedings. Though the learned
Counsel for the applicants submits that such
summons of execution proceedings is served upon
the respondent No.1 in the month of January,
2011, he did not take steps till March/April,
2011, it appears that the respondent No.1 has
explained that after he got knowledge, he
applied for certified copies and those were
received by him somewhere in the month of
February, 2011. The learned Counsel for the
respondent No.1 has placed reliance upon the
various authoritative pronouncements of the
Supreme Court wherein the view is taken that
prayer for condonation of delay may be liberally
considered. Therefore, in the peculiar facts
and circumstances of this case, in revisional
jurisdiction, no case is made out to cause
interference in the impugned judgment and order

of the District Court. It is not necessary to
reiterate / reproduce the findings recorded by
the District Court while allowing the
application for condonation of delay filed by
the respondent No.1 along with the appeal.
Suffice it to say that those findings are in
consonance with the evidence brought on record.
The another important aspect in the matter is
that already another respondent has filed crossobjections
in the appeal. Therefore, the appeal
is bound to be proceeded on merits and,
therefore, at the most what would happen is that
the appeal filed by the respondent No.1 will be
entertained on merits since delay is condoned.
While allowing the application for condonation
of delay, the District Court has imposed costs
of Rs.16,000/- upon the respondent No.1, which
has been deposited by him before the District
Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.


CIVIL REVISION APPLICATION NO.12 OF 2013
 Sambhaji Khanduji Nagare,

VERSUS
Taher Khan s/o Wahed Khan

 CORAM: S.S. SHINDE,J.

PRONOUNCED ON:31st JULY, 2013.
Citation; 2015 (7) ALLMR185,2014(1)ABR53, 2013(6)MhLj346


It is the case of the applicant that one
deceased Sambhaji Khanduji Nagare and present
revision applicant Nos.2 and 3 had filed R.C.S.
No.346 of 1995 for recovery of possession in the
Court of C.J.S.D., at Aurangabad against the
present respondents No.1 and 2. It is the case
of the applicants that in the said suit the
present respondent No.1 was served with a
summons and he reported appearance through his
Advocate Kazi Ziauddin Khan and later on failed
to file written statement and participate in the
proceedings. The respondent No.2 reported
appearance through his advocate and filed his
written statement. However, thereafter
remained absent. The said suit came to be
decreed vide judgment and decree dated 31st
March, 2001.
2. The respondent No.1 filed appeal against

the said judgment and decree before the lower
appellate Court along with an application for
condonation of delay, which came to be
registered as MARJI No.86/2011. The applicants
herein, in response to the notice, reported
their appearance and filed reply to the said
delay condonation application and prayed for its
rejection.

3. The said application for condonation of
delay initially was rejected and the same order
was challenged before the High Court in Second
Appeal No.41/2011, which came to be allowed vide
order dated 26th September, 2012 and the lower
appellate Court was directed to dispose of the
MARJI No.86/2011 within a stipulated period.
4. The respondent No.1 adduced his evidence by
filing affidavit in the form of examination-inchief
at Exh.40 and the applicants have crossexamined
the respondent No.1. After hearing the
parties, the application for condonation of

delay came to be allowed. Hence, this civil
revision application.
5. The learned Counsel for the applicants
submits that the delay of 9 years 11 months and
2 days has been condoned by the appellate Court
there being any sufficient cause shown by the
respondent No.1. The lower appellate Court was
not justified in recording the findings that the
suit summons was not served on the respondent
No.1 when admittedly the proceedings are not
under Order 9, Rule 13 of the Code of Civil
Procedure. It is submitted that the lower
appellate Court is not justified in ignoring the
fact that the lower appellate Court has observed
in the judgment about the service of summons and
engagement of the Advocate by the respondent No.
1. The learned Counsel for the applicants
invited my attention to paras 4 and 5 from the
judgment of the trial Court coupled with order
passed by the trial Court about the service of
summons. It is submitted that if the paras 4

and 5 from the judgment of the trial Court are
read conjointly with the order passed by the
C.J.J.D. on 23rd April, 1997, it clearly reveal
that the Court has observed that the defendant
No.2, though served with suit summons, failed to
file his written statement in spite of several
chances. Hence, the suit to proceed without his
written statement against him. The learned
Counsel invited my attention to the order passed
by the C.J.J.D. on 23rd April, 1997 and also on
28th March, 2008 from the original record, which
is made available for perusal. The learned
Counsel further submits that the appropriate
course which was open to the respondents was
only to file an application under Order 9, Rule
13 of the Code. It is submitted that if such
application is considered and if the Court finds
that there was no proper service of summons, in
that case, the decree passed by the Court can be
reversed. However, the course adopted by the
District Court to appreciate the contention of
the respondents that they were never served with

summons and, therefore, they were not aware
about the judgment and decree passed by the
trial Court, should not have been gone into by
the District Court in view of the provisions of
Order 9, Rule 13 of the Code. It is submitted
that the District Court, by entering into the
said ground has practically reversed the decree
passed by the trial Court. The learned Counsel
for the applicants, in support of his contention
that whenever there is a plea raised by the
party that there is no service of summons, in
that case, the only course available to such
party is under Order 9, Rule 13 of the Code,
pressed into service the reported judgment of
the Supreme Court in case of Bhanu Kumar Jain vs
Archana Kumar [2005(1) SCC 787]. He invited my
attention to paragraphs 33 and 34 from the
judgment and submitted that in view of clear
pronunciation of the Supreme Court in case of
Bhanu Kumar Jain (supra), only remedy which was
available to the respondents was under Order 9,
Rule 13 of the Code and further, if any order

is passed on such application, then the remedy
under Order 43 Rule 1 of the Code is available.
However, first appeal is not maintainable for
adjudication of the application on the ground
that there was no service of summons and
therefore, respondents were not aware about the
judgment and decree passed by the trial Court.
It is submitted that the first appeal can be
entertained only on merits and not on the ground
that summons is not served upon the party. He
submits that the Supreme Court in para 34 of the
judgment in case of Bhanu Kumar Jain (supra),
has observed that explanation appended to Order
9, Rule 13 of the Code shall receive strict
construction. The learned Counsel for the
applicants further invited my attention to the
judgment of the Supreme Court in case of
Oriental Aroma Chemical Industries Ltd. vs
Gujarat Industrial Development Corporation &
Anr. [2010 ALL SCR 816] and submits that the
Supreme Court in the facts of that case has
taken a view that if there is delay and if such

delay is condoned ignoring the judicially
accepted parameters for exercise of discretion
under Section 5 of the Limitation Act, in that
case, such order is required to be interfered
with. It is submitted that the party who sleeps
over his rights for more than 9 years, on
application of such party, delay should not have
been condoned by the District Court. The
learned Counsel further invited my attention to
the reported judgment of the Supreme Court in
case of Maniben Devraj Shah vs Municipal
Corporation of Brihan Mumbai [2012(3) ALL MR 450
(S.C.)] and submits that unless sufficient cause
is disclosed, the prayer for condonation of
delay should not be entertained. If the
explanation offered is found to be concocted and
if applicant is found to be throughly negligent
in presenting its cause, delay cannot be
condoned. He further invited my attention to
another judgment of the Supreme Court in case of
P.K. Ramchandran v. State of Kerala and another
[AIR 1998 SC 2276] and in particular, para 6

thereof and submitted that the law of limitation
has to be applied with all its rigour prescribed
by Statute and Courts have no power to extend
period of limitation on equitable grounds. He
further invited my attention to the judgment of
the Kerala High Court in case of Brijitha vs
Kuttiyamma [2012 DGLS(AHC) 7999] and submitted
that in an appeal u/S.96(2) of the Code against
an ex parte judgment and decree appellate court
cannot consider the question whether appellant
was prevented by sufficient cause from not
appearing in the trial on the day of trial. The
learned Counsel further invited my attention to
the judgment of the Madhya Pradesh High Court in
case of Nagar Palika Nigam Gwalior v. Motilal
Munnalal [AIR 1977 MADHYA PRADESH 182] and
submitted that when there is an ex parte decree,
it was for the appellate Court u/s 96(2) of the
Code to question propriety of ex parte order and
the only course open was to file an application
under Order 9, Rule 13 of the Code.

6. It is submitted that the applicants have
already filed Darkhast for execution of decree
way back in the year, 2002. It is submitted that
when the Court below has observed in paragraphs
4 and 5 of the order that there was service of
summons and in pursuance to such service of
summons in fact, the respondents appeared
through their advocate, the District Court
should not have disbelieved the court below on
the said aspect. It is submitted that if the
impugned judgment and order is carefully read,
it is only to give one more opportunity to the
respondents, the District Court has condoned the
inordinate delay of 9 years 11 months and two
days in filing the appeal. It is submitted that
the respondents cannot plead ignorance when
summons was served upon them and not only that
but, they caused their appearance through
Advocate. It is submitted that it was for the
original appellants to file an application under
Order 9, Rule 13 of the Code if they realized
that the trial Court has passed an ex parte

decree and suit summons was not served upon
them. Therefore, relying upon the averments in
the application, grounds taken therein,
submissions advanced across the Bar, the learned
Counsel for the applicants would submit that
this civil revision application deserves to be
allowed.
7. On the other hand, learned Counsel for the
respondents submits that in view of the judgment
of the Supreme Court in case of Mahesh Yadav &
anr v/s Rajeshwar Singh & ors [2009(2) SCC 205],
the Supreme Court on interpretation of proviso
appended to Order 9, Rule 13 of the Code held
that when an ex parte decree has been passed,
the defendant may have more than one remedies.
He may file a suit contending that the decree
was obtained fraudulently. He may file an
application under Order 9, Rule 13 of the Code
for setting aside the ex parte decree. He may
prefer an appeal from ex parte judgment and
decree. In a given case, he may also file a
::: Downloaded on - 17/04/2016 18:21:00 :::Bombay High Court
cra12.13
12
review application. The Counsel for the
respondent No.1 further submits that in view of
the provisions of Section 96 of the Code, an
appeal is maintainable against the ex parte
decree. Therefore, he submits that if more than
one remedies are available to the aggrieved
party in view of the judgment of the Supreme
Court in case of Mahesh Yadav (supra), he can
avail any of the remedies which are available to
him in law. Therefore, he submits that the
contention of the Counsel for the applicant that
the respondents were entitled to file an
application under Order 9, Rule 13 of the Code
and filing an appeal for setting aside the ex
parte decree on the ground of non service of
summons was not permissible, deserves no
consideration. The learned Counsel for the
respondent No.1 invited my attention to the
Roznama maintained before the trial Court till
disposal of the suit. He submits that careful
perusal of the Roznama from the original record
would clearly show that there is entry in the

said Roznama about issuance of summons to the
defendants. However, in the entire Roznama,
there is no entry when the summons was served
upon the defendants. He further submits that
there is no record showing that process fee has
been deposited.
8. The learned Counsel for the respondent No.1
invited my attention to the findings recorded by
the lower appellate Court and submits that the
appellate Court called upon the parties to lead
evidence in order to appreciate their
contentions and thereafter, the impugned
judgment and order has been passed by the
District Court. It is submitted that in order
to ascertain whether the suit summons was served
upon the original defendants or not, the
District Court allowed the parties to lead
evidence. It is submitted that the evidence was
led before the appellate Court. The respondent
No.1 did place on record the Election Card at
Exh.43 and Ration Card at Exh.44 in order to

show that the respondent No.1 was not residing
on the address mentioned in the suit summons.
It is submitted that the respondent No.1, at
least from the year, 1995, is residing in
different area and not on the address on which
suit summons was issued by the trial Court. It
is submitted that in absence of proof of service
of summons, available in the original record,
the District Court has adopted the appropriate
course to ask the parties to lead evidence and
accordingly, the respondents have proved that
the summons was not served upon them. The
District Court, upon appreciation of the
evidence placed on record, accepted the case of
the respondents that there was no service of
summons on them and also the contentions of the
respondents that they never engaged Advocate K.
Ziauddin Khan. It is submitted that the
judgment and order passed by the District Court
is within its jurisdiction. In revisional
jurisdiction, this Court cannot interfere in the
impugned judgment and order unless there is

jurisdictional error or findings recorded by the
District Court are perverse. It is submitted
that in the facts of the present case, findings
recorded by the District Court are upon
appreciation of the evidence and said findings
are in consonance with the material brought on
record. It is submitted that the defendants did
not lead any evidence and it was assertion of
the respondents that they never engaged Advocate
Ziauddin Khan and therefore, it was for the
applicants to bring on record that such an
advocate was engaged by the respondents. It is
submitted that though the execution proceedings
were filed in the year, 2002, the applicants in
whose favour the decree was passed by the trial
Court, did not take effective steps to get the
said decree executed till 2010. It is submitted
that from the year, 2002, twenty applications
have been filed by the applicants only with a
prayer to re-issue summons to the defendants.
Except filing such applications, no effective
steps have been taken. It is the contention of

the learned Counsel for respondent No.1 that the
decree holder waited till the record maintained
by the lower Court is destroyed as per the Civil
Manual and thereafter, they have taken effective
steps to get the decree executed. It is
submitted that when the notice / summons was
served upon the respondents in the year, 2011,
they came to know about the decree passed by the
trial Court. Immediately, they applied for the
certified copy which they received in the month
of February, 2011 and thereafter, steps were
taken to file appeal before the District Court.
The learned Counsel invited my attention to para
26 from the impugned judgment and submitted that
the District Court has rightly held about the
conduct of the applicants. It is submitted that
the decree in favour of the applicants had been
obtained by playing fraud by the plaintiffs /
revision applicants herein and fraud vitiates
everything and, therefore, the appellate Court
has rightly accepted the explanation offered by
the respondents and condoned the delay. It is

submitted that in second appeal which was filed
by the respondents before this Court, this Court
passed a detail order thereby setting aside the
order passed in MARJI No.86/2011 to be decided
on merits observing that the dispute relates to
immovable property. Therefore, it is the
contention of the Counsel for the respondent No.
1 that the District Court has only condoned the
delay and appeal is pending for adjudication on
merits. It is submitted that the prayer for
condonation of delay has been accepted by
imposing costs of Rs.16,000/-. It is submitted
that the judgment of the Madhya Pradesh High
Court in case of Nagar Palika Nigam Gwalior
(supra), on which reliance has been placed by
the learned Counsel for the applicant, is
misplaced in the facts of the present case. The
said judgment is prior to amendment in the Code
of Civil Procedure. It is further submitted
that the facts of the cases which are relied
upon by the Counsel for the applicants are
totally different than the facts involved in the

present case. The Counsel for respondent No.1
submits that the District Court submits that the
District Court has considered the documentary
evidence, the fact that the respondent No.1 was
not residing at Satara, and the fact that the
report of the Bailiff regarding service to show
that the suit summons was served upon the
respondent No.1 is not on record and also the
fact that respondent No.1 had not appointed /
engaged the advocate in the proceedings, copy of
the Vakalatnama is also not on record, the
summons of execution proceedings was not served
till the year, 2010, the Advocate who was not
appointed, appeared there being any report of
bailiff on record and the fact that for a period
of nine years, notice was not served on the
respondent No.1. It is submitted that the Court
has considered rights of the parties and imposed
costs of Rs.16,000/- on the respondent No.1 for
condoning the delay and accordingly, the amount
of costs has been deposited. The defendant No.1
in the suit has preferred cross objections in

the appeal on 7.2.2013.
9. It is submitted that there cannot be reappreciation
of the evidence in the revisional
jurisdiction and the view taken by the appellate
Court is a possible view and therefore, in
revisional jurisdiction, the said view needs no
interference. He also invited my attention to
the judgment of this Court in case of Ramesh
Madhavrao Shelke vs Bhaskar s/o Seetaram Pradhan
[2010(O) BCI 274] and in particular, para 9
thereof, the judgment in case of Shri M.L. Sethi
vs. Shri R.P. Kapur [AIR 1972 SC 2379] and also
in case of Managing Director (MIG) Hindustan
Aeronautics Ltd. Balanagar Hyderabad and another
v/s Ajit Prasad Tarway, Manager (Purchase and
Stores) Hindustan Aeronautics Ltd. [AIR 1973 SC
76] and relying upon the aforesaid judgments,
the learned Counsel for respondent No.1 submits
that there is a limited scope in revisional
jurisdiction.

10. It is further submitted that the conduct of
the applicant and the circumstances on record
are taken into consideration by the District
Court and in para 26, the District Court has
made observations about the conduct of the
applicants. It is submitted that valuable
rights in immovable property are pending for
adjudication before the District Court and
therefore, the District Court has rightly
condoned the delay. /The Counsel for respondent
No.1, in support of his contentions that the
prayer for consolidation of delay is required to
be entertained liberally so as to advance cause
of justice, pressed into service, the judgments
of the Supreme Court namely, (1) Balakrishnan v.
M. Krishnamurthy [(1998) 7 SCC 123], (2) State
(NCT of Delhi) vs. Ahmed Jaan [2008 AIR SCW
5692], (3) Collector, Ananatnag vs. Katiji [AIR
1987 SC 1353] and (4) State of Karnataka vs.
Moinuddin Kunhi [AIR 2009 SC 2577].
11. Therefore, the learned Counsel for the

respondent No.1, relying upon the written notes
of arguments, the judgments of this Court and
the Supreme Court, the documents from original
record, the findings of the District Court and
the submissions across the Bar submits that the
civil revision application is devoid of any
merits and the same may be rejected.
12. I have given careful consideration to the
submissions of the learned Counsel for the
parties. With their able assistance, perused
the grounds taken in the revision application,
annexures thereto and other documents placed on
record and also the original record summoned
from the District Court. It is the contention
of the learned Counsel for the applicants that
the respondent No.1 ought to have taken recourse
to the provisions of Order 9 rule 13 of the Code
since the ground that summons was not served on
the respondent No.1 is available only under the
said provisions. It is the contention of the
learned Counsel for the applicants that while

considering the prayer for condonation of delay,
the ground of non service of summons cannot be
taken and accepted by the Court. In order to
support this contention, the Counsel for the
applicant has relied upon the judgment of the
Supreme Court in case of Bhanu Kumar Jain
(supra), and the judgment of Kerala High Court
in case of Brijitha vs Kuttiyamma (supra).
13. It is not possible to accept the contention
of the learned Counsel for the applicants that
the ground of non service of summons cannot be
agitated in application for condonation of
delay. The remedy of statutory appeal is
provided under Section 96 of the C.P.C. When
there is ex parte decree, then the appeal is
maintainable u/s 96(2) of C.P.C. The form of
appeal and what is to be accompanied to the
appeal is provided under Order 41 of C.P.C.
Rule 3A of Order 41 of CPC provides for an
application for condonation of delay when appeal
is presented after expiry of period of

limitation specified therefor. Therefore, upon
conjoint reading of the provisions and procedure
for filing the appeal, and an application for
condonation of delay, it is abundantly clear
that there is no any condition laid down under
Order 41 Rule 3A of the Code that whenever
application is filed for condonation of delay,
the appellant cannot take a ground of non
service of summons in the application for
condonation of delay. The judgment of the Madhya
Pradesh High Court in case of Nagar Palika Nigam
Gwalior (supra) and that of Kerala High Court in
case of Brijitha vs Kuttiyamma (supra) are not
binding upon this Court. Apart from that, the
judgment of the Madhya Pradesh High Court is
prior to the amendment in Code of Civil
Procedure. In case of Bhanu Kumar Jain (supra),
the Supreme Court in para 26 has observed that
there may not be a statutory bar to avail two
remedies simultaneously and an appeal as also an
application for setting aside the ex-parte
decree can be filed; one after the other; on the

ground of public policy the right of appeal
conferred upon a suitor under a provision of
statute cannot be taken away if the same is not
in derogation or contrary to any other statutory
provisions. The Supreme Court, relying upon
paras 26 and 28 of the judgment in case of Bhanu
Kumar Jain in paragraph 15 of its judgment in
case of Mahesh Yadav and anr (supra), held that
the proviso appended to Order IX Rule 13 of the
Code of Civil Procedure postulates that when an
ex parte decree has been passed against some of
the defendants and it is necessary to set aside
the entire decree, the Court is not powerless to
do so. If an application for setting aside the
ex parte decree was maintainable at the instance
of the appellants, we fail to understand as to
why a separate suit was required to be filed.
When an ex parte decree is passed, the defendant
may have more than one remedies. He may file a
suit contending that the decree was obtained
fraudulently. He may file an application under
Order 9, Rule 13 of the Code for setting aside

the ex parte decree. He may prefer an appeal
from ex parte judgment and decree. In a given
case, he may also file a review application. The
Supreme Court, in para 16 of the said judgment,
has reproduced para 26 and 28 from the judgment
of Bhanu Kumar Jain (supra). Therefore, the
Supreme Court in case of Mahesh Yadav and anr
(supra), in para 15 has clearly laid down that
the defendants may have more than one remedies
to challenge the ex parte decree including
filing an appeal. Therefore, the submissions of
the learned Counsel for the applicants that the
respondent No.1 should have filed an application
under order 9 Rule 13 of the Code and not an
appeal under Section 96 of the C.P.C., needs no
consideration in view of the fact that the
respondent No.1 has choice to file appeal. When
the appeal is filed, there is a remedy for
filing an application for condonation of delay,
if appeal is barred by limitation. If the
appellant can take the grounds available to him
in order to disclose sufficient cause for not

filing appeal within the period of limitation,
he can certainly take a ground of non service of
suit summons.
14. The another contention of the learned
Counsel for the applicants is that the trial
Court while deciding the suit has observed that
though summons was duly served upon respondent
No.1, he has not filed written statement. The
Counsel for applicants also invited my attention
to the order passed by the trial Court wherein
it is observed that in spite of service of
summons, the respondent No.1 did not file
written statement that he engaged advocate. In
the first place, it to be observed that the
District Court did summon the record from the
trial Court in order to ascertain itself whether
the suit summons was served upon the respondent
No.1 or not. The District Court has observed
that so far as service of summons is concerned,
record is not available. So far as the
contention of the applicant that the respondent

No.1 did engage an advocate is concerned, there
is no evidence available on record to hold that
the respondent No.1 did engage an advocate.
Since the record was destroyed as per Civil
Manual, the District Court called upon the
parties to lead evidence. Accordingly,
respondent No.1 stepped into witness box and
stated that he was not residing in village
Satara and he is residing since 1994-95 at Peer
Bazar, Osmanpura. The respondent No.1 did file
on record the ration card and Voters' Identity
Card for perusal of the District Court and same
has been exhibited. In order to ascertain
whether the said documents are original and
exhibited, I have perused the record and I am
satisfied that the original Voters' I.D. card
and ration card have been exhibited. Therefore,
the District Court, after recording evidence of
respondent No.1 Taher Khan held that the
respondent No.1 is residing at Peer Bazar,
Osmanpura, Aurangabad since 1995 and not in
village Satara. The address in the suit summons

was that of village Satara. The said witness
has also deposed before the Court that one
advocate by name Advocate K.Ziauddin Khan was
never engaged by him. The District Court, from
the original record received from the trial
Court, found that there is no Vakalatnama or
proof of service of summons. The learned
Counsel for the respondent No.1 is right in
contending that only there is entry of issuance
of suit summons. However, it is not mentioned
in the Roznama whether the suit summons was
served on the respondent No.1 or not. He is
also right in submitting that there is no proof
of payment of process fees after issuance of
summons to the respondent No.1. From the
evidence of said witness, it further appears
that there was a measurement of suit land.
However, the said measurement was without
issuing notice to the respondent No.1. It
appears that the suit was for possession and in
such a suit, measurement was carried out even
without issuing notice to the respondent No.1

and decree has been passed relying upon such
measurement. This Court while deciding the
second appeal arising out of the same
proceedings, has taken note of the fact that the
matter relates to the immovable property and
suit land is having non agricultural
potentiality. Therefore, substantial rights of
the parties are involved in the matter. There
are other details which are stated by the said
witness in his evidence before the Court. It
appears that the respondents therein did not
lead any evidence and filed purshis stating
therein that the respondents i.e. applicants
herein do not want to lead any oral evidence.
It is also relevant to mention that the
execution proceedings came to be initiated by
the applicant in the year, 2002, till 2010
except filing application for re-issuing summons
to the respondents therein, no effective steps
have been taken by the applicants in order to
get the decree executed. Therefore, adverse
inference has been drawn by the District Court

and there are certain observations to that
effect in para 26 of the impugned judgment of
the District Court. It appears that the summons
was issued to the respondent No.1 on 6.6.1995.
However, the Voters' I.D. and Ration Card
produced by the respondent No.1 show that even
prior to issuance of suit summons, the
respondent No.1 is resident of Peer Bazar,
Osmanpura and not village Satara. Therefore,
the District Court went to the root of the
matter and called upon the parties to lead
evidence and upon appreciation of the evidence,
came to the definite conclusion that the address
of respondent No.1 given in the suit summons
issued by the trial Court is at village Satara.
However, the original documents produced on
record by the respondent No.1 show that he is
resident of Peer Bazar, Osmanpura i.e. different
area even prior to issuance of suit summons.
Therefore, such finding of fact based upon
evidence led by the parties, which goes to the
root of the matter and which is not perverse in

any manner, cannot be upset in revisional
jurisdiction. The respondent No.1 has also
alleged some fraud in his application filed for
condonation of delay.
15. The learned Counsel for the applicants has
placed reliance on the judgment of the Supreme
Court in case Oriental Aroma Chemical Industries
Ltd. (supra) and submits that the respondent No.
1 has not approached the District Court with
clean hands and, there is inordinate delay of
nine years and eleven months in filing the
appeal. Therefore, this Court may allow the
revision application. It is true that in the
given case, the delay of few days in absence of
sufficient cause cannot be condoned. However,
if sufficient cause is disclosed in the
application for condonation of delay, in that
case, the Court can always exercise discretion
and condone delay. In the facts of the present
case, I do not think that the respondent has not
approached the Court with clean hands. The

respondent No.1 has disclosed all the relevant
facts before the appellate Court and also before
this Court. The District Court, upon
appreciation of the evidence, found that the
address of respondent No.1 mentioned in the suit
summons at village Satara is not correct and the
applicant has proved that he is residing since
1994-95 at Peer Bazar, Osmanpura, Aurangabad.
The said ground goes to the root of the matter
and, therefore, the District Court has rightly
appreciated the contention of the respondent
No1. and the evidence brought on record and,
then condoned the delay. Ultimately, the right
of appeal is a statutory right and the matter
relates to immovable property which has nonagricultural
potentiality.
The District Court has also accepted the
contention of the respondent No.1 that he had
not engaged advocate. The District Court to
satisfy itself, summoned the record from the
trial Court and found that there is nothing in
the said record which would show / demonstrate

that the respondent No.1 did engage the advocate
to represent him. Therefore, in the facts of
the present case, none of the judgments, cited
by the learned Counsel for the applicants in
order to show that there is inordinate delay and
the same should not have been condoned, has
application. In the peculiar facts of this
case, the District Court has allowed the parties
to lead evidence and upon appreciation of such
evidence, reached to the conclusion that the
address in the suit summons was incorrect and
also the suit summons was not served upon the
respondent No.1. The District Court has also
made some comments about the conduct of the
applicants for not taking steps for long eight
years to get the decree executed, except filing
applications for issuance of summons.
So far as the another contention of the
applicants as to how the respondent No.1 came to
know about filing of such suit is concerned, the
respondent No.1 in his evidence has stated that

when his neighbourer told him that a Bailiff
from the Court was inquiring about him, he came
to be know about the said proceedings and,
thereafter, the Bailiff came to serve summons of
the execution proceedings. Though the learned
Counsel for the applicants submits that such
summons of execution proceedings is served upon
the respondent No.1 in the month of January,
2011, he did not take steps till March/April,
2011, it appears that the respondent No.1 has
explained that after he got knowledge, he
applied for certified copies and those were
received by him somewhere in the month of
February, 2011. The learned Counsel for the
respondent No.1 has placed reliance upon the
various authoritative pronouncements of the
Supreme Court wherein the view is taken that
prayer for condonation of delay may be liberally
considered. Therefore, in the peculiar facts
and circumstances of this case, in revisional
jurisdiction, no case is made out to cause
interference in the impugned judgment and order

of the District Court. It is not necessary to
reiterate / reproduce the findings recorded by
the District Court while allowing the
application for condonation of delay filed by
the respondent No.1 along with the appeal.
Suffice it to say that those findings are in
consonance with the evidence brought on record.
The another important aspect in the matter is
that already another respondent has filed crossobjections
in the appeal. Therefore, the appeal
is bound to be proceeded on merits and,
therefore, at the most what would happen is that
the appeal filed by the respondent No.1 will be
entertained on merits since delay is condoned.
While allowing the application for condonation
of delay, the District Court has imposed costs
of Rs.16,000/- upon the respondent No.1, which
has been deposited by him before the District
Court.
16. Therefore, in the facts and circumstances
of this case, no case is made out to interfere

in the impugned judgment and order passed by the
District Court. Hence, Civil Revision
Application sans merits and the same stands
rejected. Rule stands discharged with no order
as to costs.
 [ S.S. SHINDE, J ]

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