Vedabai @ Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil & Ors.
EmailAppeal: Civil Appeal No. 4494 of 2001
(Arising out of SLP (C) No. 19434 of
2000)
(From the Judgment and Order dated 7.8.2000 of the Bombay High Court in C.R.A. No. 884 of 1999)
(Arising out of SLP (C) No. 19434 of
2000)
(From the Judgment and Order dated 7.8.2000 of the Bombay High Court in C.R.A. No. 884 of 1999)
Petitioner: Vedabai @ Vaijayanatabai Baburao Patil
Respondent: Shantaram Baburao Patil & Ors.
Apeal: Civil Appeal No. 4494 of 2001
(Arising out of SLP (C) No. 19434 of
2000)
(From the Judgment and Order dated 7.8.2000 of the Bombay High Court in C.R.A. No. 884 of 1999)
(Arising out of SLP (C) No. 19434 of
2000)
(From the Judgment and Order dated 7.8.2000 of the Bombay High Court in C.R.A. No. 884 of 1999)
Judges: SYED SHAH MOHAMMED QUADRI & S.N. PHUKAN, JJ.
Date of Judgment: Jul 20, 2001
Appearances:
Mr. A.P. Mayee, Ms. Rucha Mayee, Advocate for Mr. S.V. Tambwekar, Advocate/Advocates for the Appellant.
Mr. S.U.K. Sagar, Mr. Sanjay V. Kharde and Mr. Naresh Kumar, Advocates for the Respondents.
Head Note:
LIMITATION
Limitation Act, 1963
Section 5 – Condonation – 7 days delay in filing appeal – Orders on 30.4.97 – Certified copy applied on 5.6.97 – Ground of illness – Refusal – Appeal filed while appellant still ill – Court howev-er not noticing that from 1.5.97 to 1.6.97, it was in vacation – Exercising discretion under Section 5 – Guidelines. Held that delay is condoned and appeal is restored for being decided on merits.
Held:
In exercising discretion under Section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression ‘sufficient cause’, the principle of advancing sub-stantial justice is of prime importance. The expression ‘sufficient cause’ should receive liberal con-struction. (Para 5)
Cases Reffered:
1. Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi & Ors. (1978 (2) SCC 116) (Para 5)
2. State of West Bengal v. The Administrator, Howrah Municipality & Others (1972 (1) SCC 366) (Para 5)
2. State of West Bengal v. The Administrator, Howrah Municipality & Others (1972 (1) SCC 366) (Para 5)
JUDGEMENT:
ORDER
1. Leave is granted.
2. Heard learned Counsel for the parties.
3. This appeal is directed against the order of the High Court of Bombay, Aurangabad Bench in Civil Revision Application No. 884 of 1999 dated August 7, 2000, declining to interfere with the order of the Additional District Judge, Amalner, dated March 16, 1998 dismissing Misc. Civil Application No. 21 of 1997. The appellant made that application for condonation of delay of 7 days in filing the appeal against the order of the trial court in Special C.S. No. 5/95 on the file of the Civil Judge, S.D. Aamalner.
4. A perusal of the order of the learned Civil Judge shows that he found fault with the appellant on two grounds: (i) the judg-ment under appeal was delivered on April 30, 1997 but the appli-cation for certified copy was made on June 5, 1997 and (ii) in regard to the averment in the affidavit, filed in support of the application, her illness was given as a reason for the delay; it was pointed out that while she was still ill she filed the appeal. For those two reasons the application to condone the delay of seven days in filing the appeal was dismissed. It ap-pears that the fact that during the period from May 1, 1997 to June 1, 1997 the Court was in vacation, has escaped the attention of the learned Appellate Judge. To avert further delay in filing the appeal as soon as she felt a little better she filed the appeal. This depicts her anxiety to minimise the delay rather than falsity of her case or mala fides.
5. In exercising discretion under Section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious appraoch but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression ‘sufficient cause’, the principle of advancing sub-stantial justice is of prime importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under Section 5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression ‘sufficient cause’ should receive liberal con-struction, in catena of decisions (see State of West Bengal v. The Administrator, Howrah Municipality & Others (1972 (1) SCC 366) and Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi & Ors. (1978 (2) SCC 116)). The High Court in exercising its jurisdic-tion under Section 115 C.P.C. failed to correct the jurisdictional error of the Appellate Court.
6. For the aforementioned reasons, we set aside the impugned order of the High Court as well as that of the Civil Judge, Amalner (the Appellate Court), condone the delay of seven days in filing the appeal, restore the appeal to the file of the Civil Judge and direct the learned Civil Judge, Amalner to decide the appeal on merits.
7. The appeal is accordingly allowed. No costs.
1. Leave is granted.
2. Heard learned Counsel for the parties.
3. This appeal is directed against the order of the High Court of Bombay, Aurangabad Bench in Civil Revision Application No. 884 of 1999 dated August 7, 2000, declining to interfere with the order of the Additional District Judge, Amalner, dated March 16, 1998 dismissing Misc. Civil Application No. 21 of 1997. The appellant made that application for condonation of delay of 7 days in filing the appeal against the order of the trial court in Special C.S. No. 5/95 on the file of the Civil Judge, S.D. Aamalner.
4. A perusal of the order of the learned Civil Judge shows that he found fault with the appellant on two grounds: (i) the judg-ment under appeal was delivered on April 30, 1997 but the appli-cation for certified copy was made on June 5, 1997 and (ii) in regard to the averment in the affidavit, filed in support of the application, her illness was given as a reason for the delay; it was pointed out that while she was still ill she filed the appeal. For those two reasons the application to condone the delay of seven days in filing the appeal was dismissed. It ap-pears that the fact that during the period from May 1, 1997 to June 1, 1997 the Court was in vacation, has escaped the attention of the learned Appellate Judge. To avert further delay in filing the appeal as soon as she felt a little better she filed the appeal. This depicts her anxiety to minimise the delay rather than falsity of her case or mala fides.
5. In exercising discretion under Section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious appraoch but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression ‘sufficient cause’, the principle of advancing sub-stantial justice is of prime importance. In our view in this case, the approach of the learned Civil Judge is wholly erroneous and his order is unsustainable. It is evident that the discretion under Section 5 of the Limitation Act is exercised by the Civil Judge in contravention of the law laid down by this Court, that the expression ‘sufficient cause’ should receive liberal con-struction, in catena of decisions (see State of West Bengal v. The Administrator, Howrah Municipality & Others (1972 (1) SCC 366) and Smt. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi & Ors. (1978 (2) SCC 116)). The High Court in exercising its jurisdic-tion under Section 115 C.P.C. failed to correct the jurisdictional error of the Appellate Court.
6. For the aforementioned reasons, we set aside the impugned order of the High Court as well as that of the Civil Judge, Amalner (the Appellate Court), condone the delay of seven days in filing the appeal, restore the appeal to the file of the Civil Judge and direct the learned Civil Judge, Amalner to decide the appeal on merits.
7. The appeal is accordingly allowed. No costs.
