1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal no.90 of 2010 1. Mr. Lawrence Dias, S/o John Dias, 63 years of age, retired, 2. Mrs. Luiza Dias, 54 years of age, housewife, Both r/o Block B, Indira Pushpa, Dangui Colony, Mapusa, Goa. …. Appellants V e r s u s 1. Smt. Bhagyashri Pandurang Mahadeshwar, Major of age, housewife, r/o Flat No.2/F, Hill Crown Apartments, Dattawadi, Mapusa, Goa. 2. Shri Sanjay Yeshwant Nayak, Major of age, builder, r/o house no. not known Near Mapusa Industrial Estate, Alto Duler, Mapusa,Goa. … Respondents Mr. S.D. Padiyar, Advocate for the Appellants. Mr. D.J. Pangam, Advocate for the Respondent no.1 Mr. Sudesh Usgaonkar,Advocate for respondent no.2. Coram: A. P. Lavande, J Reserved on: 16/3/ 2011. 2 Pronounced on: 31/3/2011. O R D E R: By this Second Appeal, the appellants takes exception to the judgment and order dated 30/4/2010 passed by the Adhoc District Judge, Fast Track Court at Mapusa in Regular Civil Appeal no.129 of 2009 by which the appeal filed by the appellants has been dismissed as barred by limitation. 2. The respondent no.1 herein filed Regular Civil Suit NO.146/2010/B in the Court of Civil Judge, Junior Division at Mapusa against the appellants and respondent no.2 seeking recovery of possession and compensation. The suit was decreed on 24/7/2009. 3. It appears that respondent no.1 filed an application for correction of the decree in respect of certain errors which had crept in the decree. The said application was allowed and the decree stood corrected on 3 12/10/2009. The Appellants herein thereafter filed an appeal before the District Court, North Goa at Panaji on 13/11/2009 which was made over to Fast Track Court at Mapusa.. 4. The respondent no.1 filed an application dated 22/02/2010 stating therein that the appeal was barred by limitation and there was delay of 86 days in filing the appeal. The appellants filed reply on 17/3/2010 and insisted that the appeal was not barred by Law of Limitation and as such, the application filed by respondent no.1 was liable to be dismissed. 5. By judgment and order dated 30/4/2010, the lower Appellate Court held that the appeal was barred by limitation and consequently dismissed the appeal. 6. Mr. Padiyar, learned counsel appearing for the 4 appellants submitted that the lower Appellate Court should not have dismissed the appeal holding that the same was time barred and it ought to have given an opportunity to the appellants to file application seeking condonation of delay. Learned counsel further submitted that although the limitation for filing an appeal starts from date of the original decree i.e 24/7/2009, yet the lower Appellate Court had not given opportunity to file an application seeking condonation of delay. He, therefore, submitted that the impugned decree is liable to be set aside by giving an opportunity to the appellants to file an application seeking condonation of delay in filing the appeal before the lower Appellate Court. In support of his submissions Mr. Padiyar relied upon the following judgments: I) AIR 1984 Supreme Court 1469, Udai Bhan Gupta Vs. Hari Shankar Bansal and ors. II)(2000) 7 SCC 372, State of M.P. And anr. Vs. Pradeep Kumar and anr. 5 III) AIR 1986 Kant 199, State of Karnataka Vs. Nagappa. IV) AIR 1984 Bombay 390, M. Das Gupta Vs. Prakash K. Shah. V)2004 (6) Bom CR 684, Madhao S/o Somaji Sarode Vs. Jotiba Dhyam Upasak Shikshan and ors. 7. Per contra, Mr. Pangam, learned counsel appearing for respondent no.1 submitted that the appellants having insisted before the lower Appellate Court that the appeal was filed within limitation and having obtained an order thereon are not entitled to urge for the first in this Court that the appellants ought to have been given an opportunity to file an application seeking condonation of delay. He further submitted that the appellants had every opportunity to file such an application but they did not avail of the same and as such, the appellants are now not entitled to urge this ground in 6 Second Appeal. In support of his submission Mr. Pangam relied upon the following judgments: I) (1999)8 Supreme Court Cases 304, Ramesh Chand Sharma Vs. Udham Singh Kamal and ors. II)(2008) 14 SSCC 445, Noharlal Verma Vs. District Cooperative Central Bank Ltd. III) (2005) 1 Supreme Court Cases 436, Shyam Sundar Sarma Vs. Pannalal Jaiswal and ors. 8. I have considered the rival submissions and perused the record. 9. I shall now deal with the authorities relied upon by Mr. Padiyar, learned counsel for the appellants. In the case of Udai Bhan Gupta (supra), the Apex Court held that the High Court should have given an opportunity to the appellant to seek condonation of delay and where the objection is not taken by the Registry, the High Court at 7 the time of hearing should not have straightway proceeded to entertain the preliminary objection as to limitation. In the case of Pradeep Kumar (supra) the Apex Court held that the object of Order 41,R.3-A is to inform the appellant that time-barred appeal would not be entertained without an accompanying application explaining the delay and to indicate that the application for condonation has to be dealt with as a condition precedent. In the case of Nagappa, (supra), the learned Single Judge of Karnataka High Court held that although a time barred appeal was preferred without an application for condonation of delay, the Appellate Court ought not to dismiss it and must give an a reasonable opportunity to the appellant to correct such a defect. In the case of M. Das, Gupta, (supra), the learned Single Judge of this Court held that in terms of Order 41, Rule 3A of C.P.C an appeal presented after the expiry of the period of limitation cannot be dismissed on the ground that the application for condonation of delay does not 8 accompany the memo of appeal. In the case of Madhao Somaji Sarode, the learned Single Judge of this Court held that the Tribunal had erred in dismissing the appeal filed on the ground of limitation after entertaining the appeal on merits. The learned Single Judge held that the Tribunal had erred in coming to the finding that the appeal was filed beyond the period of limitation though the appeal was dealt with on merits. The learned Single Judge held that that the Tribunal ought to have given an opportunity to the appellant to file an application for condonation of delay. 10. In the case of Ramesh Chand Sharma relied upon by Mr. Pangam, the Apex Court held that the Administrative Tribunal could not admit the application which was time barred without seeking condonation of delay. In the case of Noharlal Verma, the Apex Court held that the bar of limitation goes to the root of the matter and if a suit or appeal is filed beyond the period of limitation 9 the Court or authority has no jurisdiction to entertain the matter and decide it on merits and the court has an independent duty to look into the aspect of limitation even though limitation has not been set up as a defence. In the case of Shyam Sundar Sarma the Apex Court held that when an appeal is dismissed upon refusal to condone delay, the same operates as a decision in the appeal. In the case of Panchugopal Barua (supra), the Apex Court has held that the High Court cannot decide Second appeal on the basis of a new point neither specifically set out in memorandum of appeal nor formulated by the High Court as substantial question of law. 11. Upon perusal of the authorities sought on behalf of the appellants it is evident that in none of the authorities the facts are identical with the facts in the present case. In the present case, although admittedly no objection was taken by the Registry of the District Court, 10 objection, that too in writing was taken on behalf of the respondents that the appeal filed was barred by limitation. The appellants insisted that the appeal was not time barred and invited an order from the Lower Appellate Court . In the backdrop of these facts, I find it difficult to accept the submission of Mr. Padiyar that the lower Appellate Court could not have passed the impugned order holding that the appeal was time barred. It was obligatory on the part of the appellants herein to file an application for condonation of delay at least by way of abundant caution. It is pertinent to note that at no point of time before the lower Appellant Court, the appellants contended that in the event the Lower Appellate Court were to hold that the appeal was barred by limitation, an opportunity be given to them to seek condonation of delay. The appellants having insisted for an order on the point of limitation and having invited an adverse order now cannot be heard to contend that before holding that the appeal was barred by limitation 11 an opportunity ought to have been given to the appellants to file an application seeking condonation of delay. Even in the memo of appeal two substantial questions of law have been formulated by the appellants insisting that the lower Appellate Court was not right in holding that the appeal was barred by limitation. No doubt, Mr. Padiyar fairly conceded that he is not insisting upon the said substantial questions of law for the purpose of admission of the second appeal but formulation of the substantial questions of law discloses that the appellants having insisted that the appeal filed before the lower Appellate Court was not barred by limitation. I, therefore find merit in the submission of Mr. Pangam that the appellants having insisted that the appeal before the lower Appellate Court was within limitation now cannot be permitted to urge for the first time in Second appeal that the lower Appellate Court ought to have given the appellants an opportunity of filing an application seeking condonation of 12 delay. The appellants having insisted that the appeal was filed within the period of limitation the lower Appellate Court was perfectly justified in passing the impugned order holding that the appeal was barred by limitation and consequently dismissing the appeal filed before it. 12. In view of the above discussion I do not find any ground to admit Second appeal filed by the appellants. No substantial question of law is involved in the appeal. Hence, the appeal is dismissed. A. P. Lavande, J. Ap/-