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
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