Thursday, 9 January 2020

When court should decide application for condonation of delay and application for restoration of appeal together?

Perusal of the above extracted portion shows that the
cause shown in the application for the condonation of delay and
the cause shown for the restoration of appeal are one and the
same viz. settlement between the parties. The reasons in both
the applications are common. Once the Appellate Court recorded
this categoric finding, in my opinion, the Appellate Court should

have clubbed both the applications together and heard and
decided together. By the impugned order, the Appellate Court
has allowed the application for condonation of delay and
condoned the delay of 2120 days in filing application for
restoration. This has certainly caused prejudice to the petitioners
as admittedly the reasons in both the applications are one and
the same. Once having allowed the application for condonation
of delay, it will not be possible for the Appellate Court to dismiss
the application for restoration of the appeal as the grounds are
one and the same. In my opinion, the Appellate Court should
have, therefore, clubbed the applications together and heard
and decided together. On this ground alone, the impugned order
deserves to be set aside and is accordingly set aside, thereby,
restoring Marji Application No.12 of 2016.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7574 OF 2016

Shaikh Mohammed Safique  Vs Mohammed Sameem Mohammad Yusuf

CORAM : R.G.KETKAR,J.
DATE : 28/07/2016


1. Heard Mr.G.S.Godbole, learned senior counsel for the
petitioners and Mr.R.A.Thorat, learned senior counsel for
respondent at length.
2. Rule. Ms. Shelke waives service for the respondent. At the
request and by consent of the parties, Rule is made returnable
forthwith and petition is taken up for final hearing.
3. By this Petition under Article 227 of the Constitution of
India, the petitioners have challenged the Judgment and order
dated 5.5.2016 passed by the Appellate Bench of the Small
Causes Court in Marji Application No.12 of 2016 in Appeal No.745
of 2004 arising from R.A.E. Suit No.482/904 of 1999. By that
order, the Appellate Court allowed the Marji application filed by
the respondent for condoning delay of 2120 days in filing the

application for restoration subject to payment of costs of
Rs.50,000/- to the petitioners herein. Mr. Thorat states that
pursuant to the impugned order, the respondent has deposited
amount of Rs.50,000/- in the Court. Mr. Godbole states that the
petitioners have not withdrawn the said amount.
4. In support of this Petition, Mr. Godbole submitted that by
order dated 10.2.2010, Appeal No. 745 of 2004 was dismissed for
want of prosecution as both the parties and Advocates remained
absent. Respondent took out Marji Application No. 12 of 2016
for condoning delay of 2120 days in filing the application for
restoration. The respondent has also filed separate application
for restoration. In paragraph 18 of the impugned order, the
Appellate Court specifically observed that the cause shown in
the application for condonation of delay and the cause shown in
restoration of delay are one and the same, viz. settlement
between the parties. The reasons in both the applications are
common. Unless the delay is condoned and the application for
restoration of Appeal is registered, the matter cannot be decided
on merits. He submitted that once the Appellate Court recorded a
categoric finding that the cause shown in both the applications is
one and the same, the Appellate Court should have clubbed both
the applications together and heard and disposed of together. By
allowing the application for condonation of delay, it has caused
prejudice to the petitioners as in view of the impugned order the

Appellate Court is bound to restore the Appeal. Having accepted
the reasons for condoning delay which are selfsame reasons for
restoration of the Appeal, the Appellate Court should have heard
both the Applications together.
5. Mr. Godbole further submitted that the suit was decreed on
6.10.2003. The respondent filed application under Order IX, Rule
13 of C.P.C. He submitted that the suit was not decreed ex parte
and in fact the learned trial Judge while rejecting the application
under Order IX, Rule 13, held that, that application is not
maintainable. He further submitted that the respondent also
preferred substantive Appeal under Section 96 of C.P.C.
challenging the decree passed by the trial Court and the Appeal
was dismissed on 1.3.2005 as Advocate and the appellants were
absent and objections were not removed. He submitted that as
the substantive Appeal against the trial court's decree is
dismissed, even otherwise the application under Order IX, Rule
13 is not maintainable.
6. On the other hand, Mr. Thorat supported the impugned
order. He further submitted that the decree passed by the trial
Court is exparte decree and, therefore, the application under
Order IX, Rule 13 is perfectly maintainable. He further submitted
that Appeal (ST) No. 3194 of 2004 filed under section 96 of C.P.C
against the trial court's decree was not dismissed on merits and
was dismissed in default as the appellants and advocate

remained absent and objections were not removed. He,
therefore, submitted that the trial court's decree cannot be said
to have merged after dismissal of the appeal on 1.3.2005.
7. I have considered the rival submissions advanced by the
learned counsel appearing for the parties. I have also perused
the material on record. As noted earlier, Appeal No. 745 of 2004
was dismissed for want of prosecution on 10.2.2010 as both the
parties and Advocates remained absent. The respondent has
filed two applications, one for condonation of delay and another
for restoration of the appeal. In paragraph 18 of the impugned
order, the Appellate court has observed thus:
“ … …. All the contentions made by the appellant and the
respondents are actually towards the merits of the main
application for restoration of appeal which is yet to be
registered and heard on merits. The cause shown in this
application for the condonation of delay and the cause
shown for the restoration of appeal are one and the same
that of settlement between the parties. The reasons in both
the applications are common. Unless the delay is condoned
and the application for restoration of appeal is registered,
the matter cannot be decided on merits... ...”
8. Perusal of the above extracted portion shows that the
cause shown in the application for the condonation of delay and
the cause shown for the restoration of appeal are one and the
same viz. settlement between the parties. The reasons in both
the applications are common. Once the Appellate Court recorded
this categoric finding, in my opinion, the Appellate Court should

have clubbed both the applications together and heard and
decided together. By the impugned order, the Appellate Court
has allowed the application for condonation of delay and
condoned the delay of 2120 days in filing application for
restoration. This has certainly caused prejudice to the petitioners
as admittedly the reasons in both the applications are one and
the same. Once having allowed the application for condonation
of delay, it will not be possible for the Appellate Court to dismiss
the application for restoration of the appeal as the grounds are
one and the same. In my opinion, the Appellate Court should
have, therefore, clubbed the applications together and heard
and decided together. On this ground alone, the impugned order
deserves to be set aside and is accordingly set aside, thereby,
restoring Marji Application No.12 of 2016.
9. Mr. Godbole, upon taking instructions from Mr Mudassir
shiakh, son of petitioner no.1, states that till the decision of the
applications for condonation of delay and restoration of the
appeal, the petitioners will not execute the trial Court's decree
provided the respondent does not create third party interest as
also does not part with possession. Mr. Thorat states that the
respondent is in possession. Respondent has neither created
third party interest nor parted with possession. Respondent will
hereafter neither create third party interest nor part with
possession. The statements made by the learned counsel are

accepted. Hence, the following order.
(i) Impugned order dated 5.5.2016 passed by the Appellate
Court is quashed and set aside. Marji Application No. 12 of 2016
is restored to the file of the appellate Court.
(ii) Marji Application No. 12 of 2016 and Application for
restoration of the Appeal shall be clubbed together. The
Appellate Court shall hear and decide both the applications
together and pass appropriate orders in accordance with law. All
contentions of the parties in that regard are expressly kept open.
The Appellate Court will decide the said applications
uninfluenced by the observations made herein.
(iii) Till applications for condonation of delay and restoration of
appeal are heard and decided, the petitioners shall not execute
the trial Court's decree subject to the respondents neither
creating third party interest nor parting with possession.
(iv) Amount of Rs. 50,000/- shall be invested for appropriate
period by the Appellate Court and while deciding the application
for condonation of delay and application for restoration of
appeal, the Appellate Court shall pass appropriate order as
regards deposit of amount of Rs.50,000/- along with accrued
interest.
(v) Rule is made absolute accordingly with no order as to
costs.
(R.G.KETKAR, J.)

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