Chokinath Madhao Tabhane & Anr. Vs. Ramdas Udaram Gedam & Anr.
EmailAppeal: Civil Appeal No. 7250 of 2001
(Arising out of SLP (C) No. 2140/2001)
(Arising out of SLP (C) No. 2140/2001)
Petitioner: Chokinath Madhao Tabhane & Anr.
Respondent: Ramdas Udaram Gedam & Anr.
Apeal: Civil Appeal No. 7250 of 2001
(Arising out of SLP (C) No. 2140/2001)
(Arising out of SLP (C) No. 2140/2001)
Judges: M.B. SHAH & DORAISWAMY RAJU, JJ.
Date of Judgment: Oct 16, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 115 – Revision – Jurisdiction – Exercise of – Revision against order, refusing to condone delay in filing appeal – High Court allowing withdrawal of said application with liberty to file appropriate application – Fresh application moved – District court condoning delay – In fresh revision, High Court commenting upon previous orders and findings of district court about negligence of lawyer and holding appellants to be negligent. Held that there was total non-application of mind. Orders of High Court set aside and orders of district court restored. (Paras 4 to 6)
JUDGEMENT:
ORDER
1. Leave granted.
2. Heard the learned counsel for the parties,
3. This appeal is filed against the judgment and order dated 23.11.2000 passed by the High Court of judicature at Bombay bench at Nagpur, passed in civil revision application no. 659/1999. By the impugned order, the High Court set aside the order dated 3.3.1999 below exhibit 1 in Misc. civil application no. 4438 of 1998 passed by the 8th Addl. district judge, Nagpur who condoned the delay in filing the appeal.
4. From the order passed by the High Court, it is apparent that there is total non-application of mind by the court to the facts of the case as well as jurisdiction conferred upon it under section 115 of the CPC, For this purpose, we would first refer to the order dated 30.3.1998 passed by the High Court in previous revision application (CRA 365/98) filed by the appellants challenging the order passed by the district court in not condoning the delay. The court, it appears at the admission stage had passed the following order :-
“On a motion made by the learned counsel for applicants, application for condonation of delay registered as M.C.A. No. 68/96 is permitted to be withdrawn with liberty to make appropriate application. As a result of withdrawal, order dated 9.2.1998 passed on that application does not survive. Revision is rendered infructuous and disposed of as such.”
5. On the basis of the said order, appellants approached the district court by filing fresh application. The court considered the fact that the appellants were the poor labourer and rickshaw puller who were not informed about the court proceedings by their advocate and that their advocate remained absent at the time of the trial of the suit, therefore, the court proceeded ex parte and passed the decree dated 7.11.1994. They came to know about the passing of the said ex parte decree for the first time on 2.1.1996 and on 15.1.1996, they filed the appeal along with application for condonation of delay. The court observed that from the record, it appears that the counsel for the appellants failed to intimate to the appellants about the progress of the matter and, therefore, there was negligence on the part of the counsel and same was sufficient cause to condone the delay. This aspect is not at all considered by the High Court.
6. The High Court, unfortunately observed that the appellants were extremely negligent in conducting their case. The High Court also commented upon the order passed by another learned judge disposing of earlier civil revision application no. 365/98. There may be some substance in the contention of the learned counsel for the respondents that by the ex parte order dated 30.3.1998, the High Court has set at naught earlier order passed by the district court on 9.2.1998, but at the same time, it was not proper for the High Court to comment upon the same when respondents had not challenged the said order by filing either review application or by approaching this Court.
7. In this view of the matter, impugned order passed by the High Court is set aside and the order dated 3.3.1998 passed by the 8th Addl. district judge, Nagpur in M.C.A. No. 4438/98 condoning delay in filing appeal is restored. There shall be no order as to costs.
8. Till the appeal is decided, parties are directed to maintain status quo as of today.
1. Leave granted.
2. Heard the learned counsel for the parties,
3. This appeal is filed against the judgment and order dated 23.11.2000 passed by the High Court of judicature at Bombay bench at Nagpur, passed in civil revision application no. 659/1999. By the impugned order, the High Court set aside the order dated 3.3.1999 below exhibit 1 in Misc. civil application no. 4438 of 1998 passed by the 8th Addl. district judge, Nagpur who condoned the delay in filing the appeal.
4. From the order passed by the High Court, it is apparent that there is total non-application of mind by the court to the facts of the case as well as jurisdiction conferred upon it under section 115 of the CPC, For this purpose, we would first refer to the order dated 30.3.1998 passed by the High Court in previous revision application (CRA 365/98) filed by the appellants challenging the order passed by the district court in not condoning the delay. The court, it appears at the admission stage had passed the following order :-
“On a motion made by the learned counsel for applicants, application for condonation of delay registered as M.C.A. No. 68/96 is permitted to be withdrawn with liberty to make appropriate application. As a result of withdrawal, order dated 9.2.1998 passed on that application does not survive. Revision is rendered infructuous and disposed of as such.”
5. On the basis of the said order, appellants approached the district court by filing fresh application. The court considered the fact that the appellants were the poor labourer and rickshaw puller who were not informed about the court proceedings by their advocate and that their advocate remained absent at the time of the trial of the suit, therefore, the court proceeded ex parte and passed the decree dated 7.11.1994. They came to know about the passing of the said ex parte decree for the first time on 2.1.1996 and on 15.1.1996, they filed the appeal along with application for condonation of delay. The court observed that from the record, it appears that the counsel for the appellants failed to intimate to the appellants about the progress of the matter and, therefore, there was negligence on the part of the counsel and same was sufficient cause to condone the delay. This aspect is not at all considered by the High Court.
6. The High Court, unfortunately observed that the appellants were extremely negligent in conducting their case. The High Court also commented upon the order passed by another learned judge disposing of earlier civil revision application no. 365/98. There may be some substance in the contention of the learned counsel for the respondents that by the ex parte order dated 30.3.1998, the High Court has set at naught earlier order passed by the district court on 9.2.1998, but at the same time, it was not proper for the High Court to comment upon the same when respondents had not challenged the said order by filing either review application or by approaching this Court.
7. In this view of the matter, impugned order passed by the High Court is set aside and the order dated 3.3.1998 passed by the 8th Addl. district judge, Nagpur in M.C.A. No. 4438/98 condoning delay in filing appeal is restored. There shall be no order as to costs.
8. Till the appeal is decided, parties are directed to maintain status quo as of today.
