Tuesday, 6 November 2018

Whether delay in filing of appeal can be condoned on ground that decree was not prepared?

 In the case of Udayan Chinubhai v. R.C. Bali (supra), the Hon'ble Supreme Court has held as follows :-

"35. The time requisite for obtaining a copy under Section 12 (2) must be that time which is "properly required" for getting a copy of the decree (see Lala Bal Mukand (MANU/SC/0376/1975 : AIR 1975 SC 1089) (supra)). It is not possible to conceive how a person may obtain a copy of a decree if that decree, in view of the recitals in the judgment pronounced, cannot be prepared without some further action by a party. A judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. In such a case, a party cannot take advantage of any ministerial delay in preparing the decree prior to his application for a copy, that is to say, if there is no impediment in law to prepare a decree immediately after pronouncement of the judgment, no matter if, in fact, the decree is prepared after some time elapses. No party, in that event, can exclude that time taken by the court for preparing the decree as time requisite for obtaining a copy if an application for a copy of the decree has not been made prior to the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain directions in the judgment or for non-compliance with such direction or for other legally permissible reasons, the party who is required to comply with such directions or provisions, cannot rely upon the time required by him, under those circumstances, as running against his opponent."
22. In the judgment of Madhya Pradesh High Court in the case of Ram Singh minor through Kashi Ram and another v. Smt. Ramo Bai minor through Ram Baboo and another (supra), it has been held that if a decree is substantially amended, the right of appeal would be from the date of such substantial amendment and that in any case, such amendment of the decree can be taken be taken into consideration by the Court under Section 5 of the Limitation Act, while considering the question of condonation of delay.

23. The position of law that emerges from the above quoted provision and judgments of the Hon'ble Supreme Court shows that the appellant/Corporation could not have filed appeal against only the judgment and order dated 11.11.2011 passed by the trial Court because decree was not drawn in terms thereof. The decree could have been drawn upon the respondents making payment of requisite court fee stamps for the decided decretal amount. But respondents admittedly did not make such payment and the decree in terms of judgment and order dated 11.11.2011 was not drawn. Instead, the respondents applied for correction of the said order under Section 152 of the Code of Civil Procedure. Although it was ostensibly for the typographical error in the operative portion of the said judgment and order dated 11.11.2011, but for ascertaining the quantum of mesne profit to which the respondents were entitled, the correction had a substantial effect.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 23 of 2018

Decided On: 04.05.2018

 Maharashtra State Warehousing Corporation Vs. Sudhadevi and Ors.

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2018(5) MHLJ163

1. By this appeal, the appellant/Maharashtra State Warehousing Corporation has challenged the order dated 24.08.2017 passed by the Court of District Judge, Bhandara (appellate Court) in MJC No. 92 of 2015, rejecting an application for condonation of delay filed by the appellant in preferring appeal before the said Court.

2. The appellant/Corporation was a tenant in suit premises bearing House No. 574, Village Wardhi, Bhandara Road, Tahsil and District Bhandara. The respondents had filed a suit for possession and arrears of rent against the appellant/Corporation in respect of the said suit property. The suit was decreed in favour of the respondents and the appellant/Corporation was directed to vacate the suit property, against which, it had filed an appeal.

3. Thereafter, the respondents filed Special Mesne Profits Case No. 01 of 2004 before the Court of Civil Judge, Senior Division, Bhandara (trial Court) being an application under Order 20 Rule 12 of the Code of Civil Procedure for determination of mesne profit. This application was contested by the appellant/Corporation. By judgment and order dated 11.11.2011, the trial Court partly allowed the said application holding that the appellant/Corporation was liable to pay amounts towards mesne profit in terms of the operative order. The trial Court directed that the respondents were to pay required court fee stamps for the decided decretal amount.

4. On 07.08.2012, the respondents filed an application under Section 152 of the Code of Civil Procedure for correction of clerical/typographical error in the aforesaid judgment and order passed by the trial Court. It was contended that there had been a mistake in clause (3) of the operative part of the aforesaid judgment and order dated 11.11.2011 and that certain words were required to be replaced by appropriate words, in terms of what had been held in the body of the said judgment. This application was allowed on 18.04.2014 by the trial Court and the corrections as sought by the respondents were directed to be incorporated in the judgment and order dated 11.11.2011. Upon such correction being made and the respondents depositing the requisite court fee stamps in terms of clause (5) of the corrected judgment and order dated 11.11.2011, decree was drawn by the trial Court on 07.11.2014.

5. In the meantime, the appellant/Corporation and the respondents entered into negotiations for settlement of their dispute in appeal (Regular Civil Appeal No. 43 of 2012) that arose and which was pending before the Court of District Judge, Bhandara from the decree for possession of the suit property passed in favour of the respondents. But, the Judge before whom the mediation was undertaken, submitted a report on 13.02.2015, recording that the attempts at settlement had failed between the parties. Thereafter, the appellant/Corporation applied on 16.02.2015 for certified copy of the judgment and decree passed by the trial Court. Thereafter, on 13.03.2015, the appellant/Corporation filed an appeal before this Court. According to the appellant/Corporation, there was no delay in preferring the appeal and, therefore, the appeal memo was not accompanied by an application for condonation of delay. But, on an objection raised by the Registry of this Court, the appellant/Corporation filed application for condonation of delay in preferring the appeal before this Court. The delay was calculated at 1128 days, as the date of 11.11.2011 was taken as the date of the judgment and decree under challenge. The said application for condonation of delay was filed on 25.03.2015.

6. Upon enhancement in pecuniary jurisdiction of the District Court, the said appeal filed by the appellant/Corporation stood transferred to the appellate Court (Court of District Judge, Bhandara). The appellate Court has passed the impugned order dated 24.08.2017 on the said application, holding that the appellant/Corporation failed to make out sufficient cause for condonation of delay and accordingly, the appellate Court rejected the said application. It is the said order which is subject matter of challenge in this appeal.

7. On 15.01.2018, this court issued notice for final disposal on the following Substantial Question of Law :-

"Whether the first appellate Court was legally justified in refusing to condone delay?"
8. Heard. Admit on the aforesaid Substantial Question of Law. Heard finally with the consent of learned Counsel appearing on behalf of the respective parties. The learned Counsel have been exhaustively heard on the aforesaid Substantial Question of Law.

9. Shri N.R. Saboo, learned Counsel appearing on behalf of the appellant/Corporation has contended that the appellate Court has committed a grave error in rejecting the application for condonation of delay. It is contended that hyper technical approach had been adopted by the appellate Court and the law laid down by the Hon'ble Supreme Court and this Court in the context of approach to be adopted while considering the question of condonation of delay, has not been properly applied to the facts of the present case. It was contended that the period of delay ought not to have been calculated from 11.11.2011 in the present case because although the judgment and order was passed by the trial Court partly allowing the application for mesne profit filed by the respondents, decree in terms of the said order was not drawn. This was because clause (5) of the aforesaid judgment and order dated 11.11.2011 passed by the trial Court required the respondents to pay court fee stamps for the decided decretal amount, which the respondents had failed to pay. As a result, decree was not drawn. Thereafter, the respondents themselves had applied for correction of the said judgment and order by filing an application under Section 152 of the Code of Civil Procedure. The said application was eventually decided on 18.04.2014 and corrections were directed to be made in the said judgment and order dated 11.11.2011.

10. It was contended that upon correction of the said judgment and order, a decree in terms of such order was drawn on 07.11.2014, upon the respondents making payment of the requisite court fee stamps. According to the learned Counsel for the appellant/Corporation, since the decree in the present case was eventually drawn on 07.11.2014, the period of limitation would commence from the said date and not from 11.11.2011 when the trial Court had passed the original judgment and order. It was further contended that during this period, the parties were in the process of negotiations, in the pending appeal challenging the decree of possession passed against the appellant/Corporation. It was contended that although negotiations were being conducted in the said appeal, the aspect of mesne profit was also related to the same and that, therefore, when the attempts at negotiations finally failed and such failure report dated 13.02.2015 was submitted before the appellate Court, it became clear to the appellant/Corporation that the decree of mesne profit passed against it in the present proceedings was required to be challenged. It was submitted that thereafter immediately on 16.02.2015, application for certified copy of the decree was made and appeal was filed on 13.03.2015. On this basis, it was contended that in the first place delay could not be said to be of 1128 days as the period of limitation commenced only from 07.11.2014 when decree was drawn by the trial Court and secondly that the delay from the said date was sufficiently explained on the basis of the attempts at negotiations made by the parties. The learned Counsel for the appellant/Corporation relied upon judgments of the Hon'ble Supreme Court in the cases of Jagat Dhish Bhargava v. Jawahar Lal Bhargava (reported in MANU/SC/0297/1960 : AIR 1961 SC, 832); Udayan Chinubhai v. R.C. Bali (reported in MANU/SC/0242/1977 : AIR 1977 SC, 2319) and the judgment of the Madhya Pradesh High Court in the case of Ram Singh Minor through Kashi Ram and another v. Smt. Ramo Bai minor through Ram Baboo and another (reported in MANU/MP/0058/1968 : AIR 1968 Madhya Pradesh 220).

11. On the other hand, Shri H.N. Verma, learned Counsel for the respondents submitted that there was no error committed by the appellate Court in rejecting the application for condonation of delay and that the facts as well as law were correctly appreciated by the appellate Court while passing the impugned order. It was contended that the facts of the present case demonstrated callous approach and lack of bona fides on the part of the appellant/Corporation thereby disentitling it from claiming discretionary relief from the court. It was submitted that the appellant/Corporation was not only required to demonstrate sufficient cause for delay but the said sufficient cause was required to be demonstrated within the period of limitation. It was contended that the payment of court fee stamps by the respondents as per the judgment and order dated 11.11.2011 was an irrelevant factor in the present case and the appellant/Corporation could not be permitted to take benefit of the same. It was contended that period of limitation started from the date of the judgment i.e. 11.11.2011 and not when the decree upon correction of the order was drawn on 07.11.2014. It was contended that the reliance placed on negotiations between the parties was misplaced because such negotiations were conducted in the appeal arising out of the decree for possession granted against the appellant/Corporation and that the present case was only concerned with the question of mesne profit. The learned Counsel placed reliance on the judgment of the Hon'ble Supreme Court in the cases of Basawaraj and another v. Special Land Acquisition Officer (reported in MANU/SC/0850/2013 : 2014 AIR (SC) 746); Ajit Singh Thakur Singh v. State of Gujarat (reported in MANU/SC/0109/1981: 1981 (1) SCC 495, judgment of this Court in the case of Faredoon Maneckji Dalal v. Phoroze Bomanji Javeri (reported in MANU/MH/0872/1995 : 1995(2) Mh.L.J., 344), judgment of Guwahati High Court in the case of Pradip Kumar Kalita v. Smt. Hiran Prova Kalita (in FA No. 24 of 1996 (F.B.) and the judgment of Kerala High Court in the case of Thanuvan Appukuttam v. P.n. Gopala Pillai and another (reported in MANU/KE/0041/1969 : AIR 1969 Kerala 183).

12. In order to decide the aforesaid Substantial Question of Law framed by this Court, the aspects relevant for the present case are the law laid down by the Hon'ble Supreme Court and this Court in respect of the approach to be adopted while considering whether the appellant had made out sufficient cause for condonation of delay; as to whether the limitation in the present case started on 11.11.2011 when the judgment and order was passed by the trial Court or it started on 07.11.2014 when decree was drawn after correction was made in the judgment and order; as to whether the appellant/Corporation ought to have filed appeal without waiting for such correction in the judgment and order and whether the negotiations undertaken between the parties in respect of the decree of possession passed against the appellant/Corporation could be taken into consideration for assessing sufficient cause for condonation of delay.

13. The law of limitation is a matter of public policy which enjoins that stale claims shall not be permitted to be raised and entertained before the Courts. A person who sleeps over his rights cannot be permitted to claim relief on the basis of such right after period of limitation has expired and that the law will come to the aid of the vigilant and not to the assistance of a person who lacks diligence and adopts a callous approach. In this context, the Hon'ble Supreme Court has laid down in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (reported in MANU/SC/0460/1987 : 1987 (2) SCC, 107 as follows :-

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

14. It has been held by the Hon'ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy (reported in MANU/SC/0573/1998 : 1998 (7) SCC, 123) in the context of question of condonation of delay as follows :-

"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."
15. At the same time, it has to be appreciated that when period of limitation expires, valuable rights accrue in favour of the other side, which cannot be ignored. Therefore, while considering the question of condonation of delay, the Court has to essentially balance the claims of the parties, so as to ensure that none of the parties takes advantage of his or her lack of diligence and callousness on the one hand and of hyper technical and pedantic approach on the other hand. The question whether an application seeking condonation of delay has demonstrated sufficient cause for exercise of power by the Court in favour of the applicant depends on the facts and circumstances of each case.

16. The facts of the present case need to be appreciated in the backdrop of the aforesaid position of law. Perusal of the record shows that the judgment and order partly allowing the application for mesne profit filed by the respondents was allowed on 11.11.2011. The operative part of the order shows that under clause (5), the respondents were required to pay requisite court fee stamps for the decided decretal amount in order that the decree would be drawn up. It is an admitted position that the respondents did not make such payments. This was perhaps because in clause (3) of the operative part of the said judgment and order, there were some mistakes, which the respondents sought to get corrected by filing an application under Section 152 of the Code of Civil Procedure. It would be relevant to quote the operative part of the said judgment and order, which reads as follows :-

"(3) The decretal amount till the decision of present application shall carry the interest at the rate of 6% per annum from the date of decision of application till the date of delivery of possession of suit premises given to the applicant.

(4)...

(5) The applicant has to pay the required court fee stamps for the decided decretal amount."

17. The said application filed by the respondents remained pending and it was eventually allowed on 18.04.2014 by the trial Court. The operative part of the said order reads as follows :-

"The Application at Exhibit-1 under section 152 of the Code of C.P.C. 1908 for correction of typographical error in the Judgment and Order dated 11th Nov 2011 passed in Special Mesne Profits Case No. of of 2004 stands allowed to meet the ends of Justice, where-by.-

[ii] The operative part of the Judgment and Order dated 11th Nov 2011, more particularly clause 3, there-of, is permitted to be amended by incorporating, there-in, the words "till the realization of the entire amount" and, after, the words "suit" has to be incorporated instead of the words "decision of application".

[iii[Application is disposed-of."

18. Although the correction made by the aforesaid order was termed as correction of typographical error in the judgment and order dated 11.11.2011, it had a bearing on the amount that the appellant/Corporation was liable to pay towards mesne profit because post correction, the quantum had increased. It was after the said judgment and order dated 11.11.2011 stood corrected by the aforesaid order dated 18.04.2014 passed by the trial Court, that the respondents paid the requisite court fee stamps in terms of the decretal amount upon correction of the operative portion of the order dated 11.11.2011. Upon payment of said court fee stamps, the decree was eventually drawn on 07.11.2014.

19. It has been contended on behalf of the appellant/Corporation that the period of limitation would start from the date the decree was eventually drawn on 07.11.2014, because under the Bombay Amendment to Order 41 Rule 1 of the Code of Civil Procedure, the appeal that the appellant/Corporation filed, was necessarily required to be accompanied by a copy of the decree appealed from and not just the judgment and order. The contention raised on behalf of the appellant/Corporation is that the appellate Court under Order 41 Rule 1 of the Bombay Amendment to the Code of Civil Procedure empowers the appellate Court to dispense with placing on record the judgment, but copy of the decree is mandatorily required to be filed with the appeal. In this context, Order 41 rule 1 of the Code of Civil Procedure (Bombay Amendment) needs to be perused, which reads as follows :-

"1. Form of appeal, what to accompany memorandum. - (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded;

Provided that where two or more suits have been tried together and a common judgment has been delivered, therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.

*[Explanation.- The copy of the decree-referred to in sub-rule (1) of rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6-A.]

(2). Contents of memorandum. - The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit:

Provided that the Court may dispense with the deposit or security where it deems fit to do so for sufficient cause.

(4) The appellant shall file along with the memorandum of appeal as many copies thereof on plain paper as there are respondents for being served on the respondents along with the notice of appeal"

Provided that the Court in its discretion may permit the appellant to file the necessary number of copies of the memorandum of appeal after the appeal is admitted, within such time as the Court may grant in this behalf."

20. In this context, learned Counsel appearing on behalf of the appellant/Corporation has placed reliance of judgment of the Hon'ble Supreme Court in the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others (supra). In paragraph 5 of the said judgment, the Hon'ble Supreme Court has held as follows :-

"5. The position of law under O. 41, R. 1, is absolutely clear. Under the said rule every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in that behalf, and has to be accompanied by a copy of the decree appealed from, and of the judgment on which it is founded. Rule 1 empowers the appellate Court to dispense with the filing of the judgment but there is no jurisdiction in the appellate Court to dispense with the filing of the decree. Where the decree consists of different distinct and severable directions enforceable against the same or several defendants the Court may permit the filing of such portions of the decree as are the subject-matter of the appeal but that is a problem with which we are not concerned in the present case. In law the appeal is not so much against the judgment as against the decree that is why Article 156 of the Limitation Act prescribes a period of 90 days for such appeals and provides that the period commences to run from the date of the decree under appeal. Therefore there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent."
21. In the case of Udayan Chinubhai v. R.C. Bali (supra), the Hon'ble Supreme Court has held as follows :-

"35. The time requisite for obtaining a copy under Section 12 (2) must be that time which is "properly required" for getting a copy of the decree (see Lala Bal Mukand (MANU/SC/0376/1975 : AIR 1975 SC 1089) (supra)). It is not possible to conceive how a person may obtain a copy of a decree if that decree, in view of the recitals in the judgment pronounced, cannot be prepared without some further action by a party. A judgment which is unconditioned by the requirement of any action by a party, stands on a different footing and in that event the date of the judgment will necessarily be the date of the decree. In such a case, a party cannot take advantage of any ministerial delay in preparing the decree prior to his application for a copy, that is to say, if there is no impediment in law to prepare a decree immediately after pronouncement of the judgment, no matter if, in fact, the decree is prepared after some time elapses. No party, in that event, can exclude that time taken by the court for preparing the decree as time requisite for obtaining a copy if an application for a copy of the decree has not been made prior to the preparation of the decree. It is only when there is a legal impediment to prepare a decree on account of certain directions in the judgment or for non-compliance with such direction or for other legally permissible reasons, the party who is required to comply with such directions or provisions, cannot rely upon the time required by him, under those circumstances, as running against his opponent."
22. In the judgment of Madhya Pradesh High Court in the case of Ram Singh minor through Kashi Ram and another v. Smt. Ramo Bai minor through Ram Baboo and another (supra), it has been held that if a decree is substantially amended, the right of appeal would be from the date of such substantial amendment and that in any case, such amendment of the decree can be taken be taken into consideration by the Court under Section 5 of the Limitation Act, while considering the question of condonation of delay.

23. The position of law that emerges from the above quoted provision and judgments of the Hon'ble Supreme Court shows that the appellant/Corporation could not have filed appeal against only the judgment and order dated 11.11.2011 passed by the trial Court because decree was not drawn in terms thereof. The decree could have been drawn upon the respondents making payment of requisite court fee stamps for the decided decretal amount. But respondents admittedly did not make such payment and the decree in terms of judgment and order dated 11.11.2011 was not drawn. Instead, the respondents applied for correction of the said order under Section 152 of the Code of Civil Procedure. Although it was ostensibly for the typographical error in the operative portion of the said judgment and order dated 11.11.2011, but for ascertaining the quantum of mesne profit to which the respondents were entitled, the correction had a substantial effect.

24. The said application for correction filed under Section 152 of the Code of Civil Procedure was eventually partly allowed on 18.04.2014. Thus, corrected judgment and order came into existence on 18.04.2014, which was also subject to payment of requisite court fee stamps by the respondents for the decretal amount that would be calculated in terms of the corrected judgment and order. After the respondents deposited the aforesaid requisite court fee stamps, the decree was admittedly drawn by the trial Court on 07.11.2014.

25. By applying Order 41 Rule 1 of the Code of Civil Procedure (Bombay Amendment), it is clear that until the decree was drawn in terms of the corrected judgment and order passed by the trial Court on 07.11.2014, the appellant could not have filed the appeal as under the said provision, the memorandum of appeal was mandatorily required to be accompanied by a copy of the decree appealed from The position of law as it emerges on reading the aforesaid judgments of the Hon'ble Supreme Court in the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others (supra) and Udayan Chinubhai v. R.C. Bali (supra), is that the period of limitation in the present case commenced from 07.11.2014, when the decree was eventually drawn by the trial Court. This was because in the absence of such decree being drawn by the trial Court, the appellant/Corporation could not have filed appeal challenging the same.

26. The reliance placed by the learned Counsel appearing on behalf of the respondents on the judgments in the case of Pradip Kumar Kalita v. Smt. Hiran Prova Kalita (supra) and Faredoon Maneckji Dalal v. Phiroze Bomanji Javeri (supra) appears to be misplaced and it does not assist the respondents in defending the impugned order passed by the appellate Court. This is because the aforesaid provision of Order 41 Rule 1 of the Code of Civil Procedure (Bombay Amendment) and the above quoted judgments of the Hon'ble Supreme Court make it very clear that in the facts of the present case, the period of limitation commenced from 07.11.2014, when the decree was finally drawn, upon correction of the judgment and order dated 11.11.2011 as sought by the respondents themselves. This leads to the question as to whether the appellant/Corporation had sufficiently explained the delay in filing the appeal when the decree dated 07.11.2014 is reckoned as the date for commencement of period of limitation. Since the period of limitation was 90 days, it expired upon expiry of 90 days in February, 2015. It has come on record that the appellant/Corporation applied for certified copy of the appeal on 16.02.2015 and that the appeal was eventually filed on 13.03.2015. Upon taking the date of 07.11.2014 as the starting point for commencement of limitation, it is evident that the appellate Court erred in proceeding on the basis that there was delay of 1128 days in filing the appeal. The number of days of delay gets reduced substantially when 07.11.2014 is taken as the date for commencement of the period of limitation. The question is as to whether the appellant/Corporation has been able to place on record material to show sufficient cause for condonation of delay in such facts and circumstances.

27. In the above quoted judgment passed by the Hon'ble Supreme Court in the case of "Collector, Land Acquisition, Anantnag and another v. Msdt. Katiji and others (supra)", it has been laid down that the Court is required to adopt an approach that is in furtherance of cause of justice and that hyper technical or pedantic approach is to be avoided. It is in the interest of the parties that the disputes are decided on merits rather than on technicalities. In the present case, the appellant/Corporation has contended that the delay after decree was drawn on 07.11.2014, took place because there were negotiations between the parties and possibility of settlement was being explored. The record shows that there was indeed mediation exercise undertaken between the parties in the appeal arising from the decree for possession passed against the appellant/Corporation. An order dated 13.02.2015 (Exh. 11) has been placed on record, which shows that the mediation was recorded as failed on that date. Although the said process of mediation was undertaken in the appeal that arose out of the decree of possession granted against the appellant/Corporation, the question of mesne profit can be said to be an aspect concerning such negotiations. It would not be unreasonable for the appellant/Corporation to contend that the process of mediation so undertaken did include the aspect of quantum of mesne profits that were claimed by the respondents against the appellant/Corporation.

28. It appears reasonable that after the attempts at mediation eventually failed on 13.02.2015 that the appellant/Corporation took steps for obtaining certified copy of the judgment and decree which it was required to challenge. It has come on record that the appellant/Corporation applied for certified copy on 16.02.2015 and that the appeal was filed on 13.03.2015. The respondents have contended that the said aspect of negotiations could not have been considered by the Court at all and that sufficient cause was required to be demonstrated within the period of limitation of 90 days, even if it was reckoned that the period of limitation commenced on 07.11.2014.

29. A perusal of the record and the facts as they have emerged shows that, after all possibility of settlement by mediation or negotiations was over that the appellant/Corporation took steps for obtaining certified copies and filing the appeal on 13.03.2015. As it is found that the period of limitation did not commence from 11.11.2011 and that it did commence from 07.11.2014 when the decree was eventually drawn by the trial Court, the appellant/Corporation can be said to have shown sufficient cause for condonation of delay for the period between February and March, 2015 for filing of the appeal. The appellate Court failed to appreciate this aspect of the matter while holding that the appellant/Corporation was guilty of callous approach and that its application for condonation of delay lacked bona fides. The emphasis placed by the appellate Court on the admission by the witness of the appellant/Corporation that application for certified copy of the judgment and decree was made for the first time on 16.02.2015, was not based on proper appreciation of the facts and circumstances of the present case. The appellate Court has drawn adverse inference by proceeding on the basis that the appellant/Corporation did not do anything and that it remained dormant from 11.11.2011 to 16.02.2015, without appreciating that no decree was actually drawn by the trial Court till 07.11.2014. The finding rendered by the trial Court that the appeal period from 11.11.2011 was long over even before application for correction of order was filed by the respondents on 07.08.2012 is also not based on proper appreciation of the facts and law in the present case. The period of limitation could not be said to have commenced from 11.11.2011 because the respondents themselves had not paid requisite court fee and the decree was not drawn by the trial Court. This demonstrates the erroneous approach adopted by the appellate Court, rendering its findings perverse.

30. The contention raised on behalf of the respondents that payment of court fee was relevant only for execution of the decree and not for filing of appeal, is based on failure to appreciate the effect of Order 41 Rule 1 of the Code of Civil Procedure (Bombay Amendment) concerning mandatory requirement of placing a copy of the decree along with the memorandum of appeal while approaching the appellate Court. In this context, it becomes clear that the judgments on which reliance has been placed on behalf of respondents does not further their case in defending the impugned order passed by the appellate Court.

31. Even assuming that the limitation period commenced from 11.11.2011, as contended by the respondents, the facts and circumstances of the present case show that there was sufficient cause shown by the appellant for condonation of delay. The appellant could not be said to be callous and the application for condonation of delay deserved to be allowed on the touchstone of the law referred above.

32. The above discussion demonstrates that the appellate Court in the present case misdirected itself in rejecting the application for condonation of delay filed on behalf of the appellant/Corporation and that its findings were perverse, being based on erroneous appreciation of the facts and law. Hence, the Substantial Question of Law framed by this Court deserves to be answered in favour of the appellant/Corporation and against the respondents.

33. Accordingly, the instant appeal filed by the appellant/Corporation is allowed. The impugned order dated 24.08.2017 passed by the appellate Court is quashed and set aside. Consequently, the application for condonation of delay filed by the appellant/Corporation is allowed and the parties are relegated to the appellate Court for deciding on merits the appeal filed by the appellant/Corporation. This appeal is disposed of in above terms with no order as to costs.


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