Friday, 22 April 2016

Whether rejection of delay condonation application for filing first appeal amounts to dismissal of first appeal?

This Court in the case of Chandrakant Govind Sutar
.vs. M. K. Associates and another reported in 2003 (1) Mh.L.J.
1011 considered the duty of the Counsel towards his client as well
as duty towards the Court with reference to the Advocates Act as
well as the Civil Procedure Code. Regarding the order passed
below the application for condonation of delay, when such order is
passed at the stage of first appeal, it was specifically observed by
this Court that when application for condonation of delay is
allowed by the subordinate Court, in those cases revision under
Section 115 of the Code of Civil Procedure would be available. In
other words, when an order is passed dismissing the application
for condonation of delay in preferring the First Appeal, the
revision application against such order was held not tenable as the
consequence of dismissing the application for condonation of
delay in filing the appeal results in disposing the appeal as time
barred. Therefore, remedy by way of Second Appeal is available
in such cases.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR
SECOND APPEAL NO.128 OF 2013
 Smt.Shewantabai wd/o. Kashinath
Kumbhare (Since deceased).

// Versus //
Purushottam s/o. Mahadeorao Ambatkar,

CORAM: A.P.BHANGALE, J.
DATED : 3rd February, 2014.
Citation;2015(7) ALLMR425

2. Admitted on the following substantial question of law :
Whether in the facts and circumstances the first
Appellate Court erred by refusing to hear first
appeal on merits by refusing to condone delay ?
My answer is in the affirmative for the reasons as stated
below.
3. This appeal arises from order dt. 8.11.2012 passed by
the learned Principal District Judge, Wardha whereby the learned
first Appellate Judge refused to condone delay on the ground of
absence of reasonable explanation for the delay caused to prefer
the First Appeal. It appears that present appellants are, in fact,
legal heirs of appellant before the first Appellate Court namely
Smt. Shewantabai Kashinath Kumbhare, who is referred to in the
impugned order and who is no more living. Most of the reasoning
given by the first Appellate Judge was about age of applicant
Shewantabai as to whether she was aged 67 years or 82 years and
also certificate regarding medical treatment of Shewantabai as to
whether she was suffering from hypertension, anaemia with
general debility due to old age and whether she was advised bed
rest for the period concerned and about her presence and
attendance in the Court on 6.12.2011 and 31.12.2011.

Ultimately, the learned first Appellate Judge, instead of hearing
the matter on merits, held that long and inordinate delay of 394
days excluding the period of appeal i.e. of 360 days has occurred.
The concluding part that there was no reasonable ground for delay
itself is answered by unfortunate death of Shewantabai as this
second appeal is now preferred by her legal heirs on account of
her death.
4. In support of the contention that the First Appeal
should have been entertained and heard on merits on behalf of the
appellants, reference is made to the ruling in the case of Shyam
Sunder Sarma .vs. Pannalal Jaiswal and Others reported in
2005 (1) Mh.L.J. 340. The three Judges Bench of Hon'ble Supreme
Court observed in para nos. 9 and 10 about the legal position in
this regard making reference to earlier judicial precedents in
M/s.Mela Ram and Sons vs. The Commissioner of Income Tax,
Punjab reported in 1956 SCR 166, wherein the Apex Court held
that the appeal presented out of time is an appeal and order
dismissing it as time barred is one passed in appeal. Reference is
also made to the ruling in Sheodan Singh .vs. Daryao Kunwar
reported in AIR 1966 SC 1332 rendered by four Judges of the
Apex Court by which it was held that where decision is given on

merits by the trial Court and matter is taken in appeal and the
appeal is dismissed on some preliminary ground like limitation or
default in printing, it must be held that such dismissal, when it
confirms decision of the trial Court on merits, itself amounts to
appeal being heard and finally decided on merits whatever be the
ground for dismissal of appeal. The Apex Court also gave
clarification in respect of Full Bench decision of Kerala High Court
in Thambi vs. Mathew reported in 1987 (2) KLT 848 holding that
the appeal presented out of time was nevertheless appeal in the
eye of law for all the purposes and the order dismissing the
appeal was a decree that could be the subject matter of a Second
Appeal. The Second Appeal was, therefore, held as competent.
5. The learned Counsel for the respondents made a
reference to the case of The Commissioner, HubliDharwad
Municipal Corporation vs. Shrishail and Others reported in AIR
2004 Karnataka 75. The learned Counsel argued that this was a
decision by the Full Bench of the Karnataka High Court in which
order of dismissal of First Appeal as barred by limitation was
treated as not a decree and it was held that the Second Appeal
against such order is not maintainable. Even if formal decree is
drawn as, according to the Full Bench of Karnataka High Court,

proper course is to file revision under Section 115. This appears
to be a contrary view to the views taken in earlier cases referred to
which unfortunately were not brought to the notice of Full Bench
of Karnataka High Court including the view of Full Bench of Four
Judges in Sheodan Singh's case (cited supra). Therefore, the Full
Bench view of the Karnataka High Court when compared with the
view in Shyam Sunder Sarma's case, it would not be a good law as
in such cases when the first Appellate Court refuses to condone
delay in filing the appeal, it would amount to dismissal of the
appeal itself as the trial Court's decree is confirmed thereby. That
being so, substantive remedy of appeal would be available against
such refusal to condone delay which, in fact, results in decision of
the first appeal itself.
6. Looking to the Judgment and Order in the present case
passed by the trial Court, it appears that the suit was instituted by
the plaintiffs on the basis of title as owner for possession of the
suit house. The defendant had resisted the suit disputing title of
the plaintiffs and also alleged that the plaintiffs had indulged into
illegal money lending business. While hearing submissions at the
bar, it does appear by looking into the impugned Judgment and
Order that the trial Judge appears to have ignored framing issues

on the basis of plea as to whether the plaintiff was running illegal
money lending business. Though, according to the learned
Counsel for the respondent, other issue was touching to the plea
raised by the defendant whether
loan in the sum of Rs.30,000/was
taken by the defendant from the plaintiffs and they executed
sale deed by way of security.
7. In the light of submissions at bar, I had an advantage to
consider the Judgment and Order passed by the trial Court as well
as the order whereby the learned first Appellate Judge refused to
condone delay of 360 days being long and inordinate. In my
opinion, when the first Appeal is preferred, in considering the
prayer for condonation of delay in preferring the first appeal,
hypertechnical approach should not be adopted as the order
refusing to condone delay results in causing irreparable loss to the
appellant, in whose favour delay could be condoned for hearing
controversy between the parties on merits and in accordance with
law. It must be borne in mind that first appeal under Section 96 of
the Code of Civil Procedure is valuable right to be heard on facts
and law. Conscious application of judicial mind is must for to
record findings upon all issues and contentions.

8. This Court in the case of Chandrakant Govind Sutar
.vs. M. K. Associates and another reported in 2003 (1) Mh.L.J.
1011 considered the duty of the Counsel towards his client as well
as duty towards the Court with reference to the Advocates Act as
well as the Civil Procedure Code. Regarding the order passed
below the application for condonation of delay, when such order is
passed at the stage of first appeal, it was specifically observed by
this Court that when application for condonation of delay is
allowed by the subordinate Court, in those cases revision under
Section 115 of the Code of Civil Procedure would be available. In
other words, when an order is passed dismissing the application
for condonation of delay in preferring the First Appeal, the
revision application against such order was held not tenable as the
consequence of dismissing the application for condonation of
delay in filing the appeal results in disposing the appeal as time
barred. Therefore, remedy by way of Second Appeal is available
in such cases. Looking to this legal position and considering that
the proceeding is sought to be taken further on behalf of the
deceased appellant by her legal heirs, I think they must get
sufficient opportunity to contest the suit on merits at the first
appellate stage. However, as prayed for on behalf of the
respondent, the opportunity is granted subject to payment of

reasonable cost in the sum of Rs.2,000/payable
to the
respondent as a condition precedent within a period of two weeks
from today.
9. In view of above, the impugned order passed by the
learned Principal District Judge is set aside. Delay in prefering the
first appeal is condoned. For the reasons stated above, the learned
Principal District Judge, Wardha is directed to hear the first appeal
on merits and in accordance with law as
expeditiously as
possible and as early as possible preferably
within six months.
Parties to appear before the Principal District Judge,
Wardha on 17.2.2014.
There shall be stay to the execution regarding
possession till the parties appear before the first Appellate Court
on 17.2.2014.

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