Oral Judgment:
1. Heard learned counsels for the respective parties.
2. In the present petition, the order which is under challenge is dated 14.10.2014 passed below Exh.1, whereby, the learned District Judge-13, Nagpur, rejected the application for condonation of delay in filing the restoration application of the appeal.
3. In the present matter, it is pointed out by both the parties that the suit for declaration, recovery of Rs.16,680/- and in the alternative, for partition claiming half share in the suit property, filed by Smt. Umarani Chaurasia, was decreed by the judgment and decree dated 21.03.1997. It was declared that Smt. Umarani Chaurasia, is the owner of the property described in Will at Exh.81 and that defendant No.1 i.e Shri Narayanprasad Chaurasia, was liable to pay Rs.8,200/- to Smt. Umarani Chaurasia. So also, it was further declared that Will Deed dated 06.01.1983 at Exh.81 shall be treated as the part of the decree and that the decree be drawn up accordingly.
4. The said judgment passed by the learned 6th Joint Civil Judge Senior Division, Nagpur, was challenged before this Court by way of the First Appeal bearing No.555 of 1997 Narayanprasad S/o. Hariprasad Chourasia Vs. Smt. Umarani Wd/o. Gyaneshwar Chourasia and Others. The said appeal was filed on 16.06.1997. The said appeal due to the enhancement of pecuniary jurisdiction of the learned District Court, was transferred to the learned District Court, Nagpur,
5. It is also seen from the record that after transfer of the appeal to the learned District Court/District Judge, the same was registered as Regular Civil Appeal No.693 of 2000 Narayanprasad S/o. Hariprasad Chourasia Vs. Smt. Umarani Wd/o. Gyaneshwar Chourasia and Others, on the file of the learned 13th Ad-Hoc District and Sessions Judge, Nagpur.
6. The learned District Judge, Nagpur, by his order dated 22.07.2004, has dismissed the appeal in default by recording the fact that though the appellant/petitioner had filed the application for bringing the legal heirs of respondent No.1 on record, as respondent No.1 expired on 09.02.2004 and an order for issuance of notices to the legal heirs is already passed, neither the appellant nor his advocate are turning up to the Court. The process fees for issuance of notice was also not paid. Hence, considering these facts, the learned Appellate Court dismissed the appeal in default as well as for failure to pay the process fees for issuance of notices.
7. The petitioner against the order dated 22.07.2004 passed by the learned Appellate Court, after the period of seven years, eight months and ten days, preferred an application for restoration of the appeal along with an application for condonation delay in filing the restoration application. The said application was contested by the respondents before the learned District Judge-13, Nagpur. The learned District Judge-13, Nagpur, by the impugned order dated 14.10.2014 passed below Exh.1, rejected the application for condonation of delay.
8. Being aggrieved with the impugned order dated 14.10.2014 below Exh.1 passed by the learned District Judge-13, Nagpur, the petitioner approached before this Court by way of filing the present writ petition.
9. It is the submission of the petitioners that after filing of the appeal, all the necessary instructions were given to the Advocate engaged by them in the matter. He thereafter, informed the petitioners that some time would be required for deciding the appeal and that the Court will prepare the paper book. He further informed that after paper book is prepared in Appeal, he will inform the petitioner and thereafter, the petitioners will have to attend the proceedings.
10. It is further stated by the petitioners that after the transfer of the appeal before the learned District Court, Nagpur, the same was transferred to various Courts under administrative order and no notices regarding such transfer of the proceedings were issued to the present petitioners. Therefore, they could not attend the proceedings for the said period. However, the learned District Judge, Nagpur, failed to appreciate the reasons stated by him and wrongly rejected the condonation of delay. Leaned counsel for the petitioners submits that the said order needs reconsideration by this Court.
11. Learned counsel for the respondents has strongly opposed the present petition. It is stated by the respondents that the conduct of present petitioners is required to be noted in the present matter. At one hand petitioner has pretended that he has filed statutory appeal, but, without prosecuting the appeal diligently, executed the sale deed of suit property with third person, in absence of any permission of the Court or intimation to respondents. He has specifically pointed out that the suit was decreed on 21.03.1997, but, petitioner-Narayanprasad Chaurasia, has executed the Sale Deed of Field No.51 with one Leeladhar Maroti Wankhede on 03.07.1998 i.e. immediately after the judgment of the learned Trial Court. It is also pointed out that the said Leeladhar Wankhede, thereafter, sold the western portion admeasuring 1.63 H.R. out of entire land bearing Khasra No.53 to one Gurumukhsingh Bhasin and Gurumukhsingh Bhasin then sell out the said property to various persons. This fact is clear from the Registered Sale Deed dated 09.08.2001 executed by Leeladhar Wankhade in favour of Gurumukhsingh Bhasin.
12. It is also pointed out that the petitioner-Narayanprasad Chaurasia, has also executed a registered sale deed with one Gurumukhsingh Bhasin on 23.02.2001 of eastern portion admeasuring 1.87 H.R. out of land bearing Khasra No.53. In view of these transactions, it is the submission of the respondents that the petitioners have adopted oblique tactics to frustrate the claim of respondent, hence, considering the conduct of petitioners, no discretionary relief can be granted in favour of the petitioners.
13. It is the submission of the present respondents that before the learned Appellate Court as well as before this Court, though the submission of petitioners is that due to non-preparation of the paper book, their Advocate did not inform them about the progress of the matter, is totally incorrect submission. He has sufficiently pointed out that as per the order dated 22.07.2004 passed by the learned Additional District Judge, it is clear that due to not taking steps i.e. not depositing the process fees, the appeal was dismissed. Hence, respondents prays for dismissal of petition with costs.
14. Learned counsel for the petitioners in support of his submissions has relied upon the judgment of this Court in LPA No.440 of 2012, wherein this Court condoned the delay of 1665 days. In the said case, it was the case of the applicant that Advocate engaged by him did not communicated about the fact that paper book in his appeal was prepared and matter was likely to be listed for final hearing. This Court observed in para Nos.5 and 6 as under :-
5) We have gone through the impugned order passed by the learned Single Judge. We have heard learned Counsel for the rival parties. At the outset, we find that when a litigant engages a Lawyer for preferring an appeal, as a matter of practice, it is the Lawyer, who is supposed to take care of the appellate proceedings and it is not necessary for the litigant that he should attend each and every date of hearing in the appeal and that too when the appeal is sent for preparation of paper book.
6) It is not in dispute that preparation of paper book was the job of Office of District Court and the practice is that the District Court informs the concerned Advocate after the paper book is made ready. There is no practice to inform the appellant or litigant after the paper book is made ready. That being so and in the wake of the fact that notice that paper book was ready was never served on the appellant or his Counsel since there is nothing on record to show accordingly, we are inclined to hold that interest of justice should not suffer by not hearing the appeal on merits. The respondents can be compensated by an order of costs. That being so, we are inclined to make the following order subject to payment of reasonable costs by the appellant:.”
However, the facts of the present case are distinguishable. Here, the appeal was dismissed due to non-submission of process fees after the legal heirs are brought on record.
15. The other case law which is relied upon is the judgment of the Patna High Court in case of Kishore Kumar Agrawal Vs. Basudeo Prasad Gutgutia and Another reported in AIR 1977 PATNA 131. Perusal of the judgment shows that after transfer of proceedings under Section 24 of the Code of Civil Procedure, notices were not served on applicant. Hence, ex-parte decree passed against the applicant was set-aside. As such, this judgment and ratio therein is not applicable to the facts of the present case.
16. It would be relevant to refer law laid down by the Hon’ble Supreme Court of India, in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others reported in (2013) 12 SCC 649, wherein the principles were broadly culled out for consideration of application for condonation of delay in para Nos.21 (21.1 to 21.13), which reads as under :-
“21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”
17. Recently, the Hon’ble Supreme Court of India in the case of State of Madhya Pradesh Vs. Ramkumar Choudhary reported in 2024 SCC OnLine SC 3612, has taken a view that delay should not be excused as a matter of generosity. The Court owes a duty to first ascertain the bonafides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and opposition of the other side is equally balanced that the Court may bring into aid the merits of the matter for the purpose of condoning the delay.
18. This Court, in a case for condonation of delay always adopt liberal and pragmatic view, if it is found that the conduct of the applicant/petitioner is genuine. However, if conduct, behavior and attitude or negligence is not satisfactory, then reject the application for condonation of delay. In the present case, it is clear from the record that immediately after the judgment and decree dated 21.03.1997 passed by the learned Trial Court, the present petitioners acted in total violation of the judgment and decree. On one hand, he has preferred an appeal before the Regular Court but at the same time, he has executed the Sale Deed with various persons. Such conduct on the part of the present petitioners is nothing but oblique tactics to frustrate the claim of respondents. It can be inferred that the petitioners were not interested in prosecuting the appeal, because they had already executed the sale deeds of the said properties to various persons.
19. In the light of judgment of the Hon’ble Supreme Court of India, in the case of Esha Bhattacharya (supra), the case of the petitioners falls under clause IX and X. The conduct caused prejudice to respondents is required to take note of. As such, this is not a fit case to exercise the discretion for condonation of delay. So also, the delay is of 2758 days, which is an inordinate delay and the reasons stated in the application are also not sufficient to condone the huge delay.
20. In my considered opinion, the conduct of the petitioners is not found genuine in the present case. They have not prosecuted their cause diligently before the learned Appellate Court. So also attempts were made to frustrate the claim of the respondents by executing the sale deed which was subject matter of challenge before the learned Appellate Court. In such circumstances, respondents who is litigating his cause by filing execution proceedings since long became sufferer in the matter and not been able to reap the fruits of decree. Hence, considering the reasons recorded by the learned Appellate Court, while dealing with the application for condonation of delay cannot be said to be erroneous or perverse in nature.
21. In the circumstances, petition being devoid of merits, same stands dismissed with no order as to costs.
