1 CRA97.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 97 OF 2005 Shri. Nandkishor Kanhyalal Agrawal, Age: 46 years, Occ: Business, R/o. Mahatma Gandhi Road, Panch Kandil ( Old Agra Road), At Post Tal. & Dist. Dhule. ...APPLICANT VERSUS 1. Dhule Municipal Corporation, Tal. & Dist. Dhule. 2. The Administrator, Dhule Municipal Corporation, Dhule. 3. Deputy Commissioner, Dhule Municipal Corporation, Dhule. ...RESPONDENTS ... Mr. S.I. Nandode, Advocate for revision applicant. Mr. A.N. Sabnis, Advocate holding for Mr. S.P. Shah, Advocate for respondent No.1. Respondent Nos. 2 and 3 : Served. ... CORAM : S.S. SHINDE, J. RESERVED ON : 02-09-2011. PRONOUNCED ON : 09-09-2011. JUDGMENT : . This Civil Revision Application takes 2 CRA97.05 exception to the order dated 17-01-1005 passed by the 2nd Adhoc Additional District Judge, Dhule in Civil M.A. No. 89 of 2003. 2. The background facts leading to file this Civil Revision Application as disclosed by the applicant are as under: . The applicant herein is the original plaintiff in Special Civil Suit No. 254 of 1996 and respondent No.1 herein is the local authority governed by the Statute and respondent Nos. 2 and 3 are the responsible and concerned officers of respondent No.1 and they are original defendants in the above mentioned Special Civil Suit No. 254 of 1996. . The applicant herein filed Special Civil Suit No. 254 of 1996 against the present respondents and in the said suit, the respondents appeared through their Counsel but they neither filed their written statement nor appeared for 3 CRA97.05 hearing. Hence, the trial Court decided the said special civil suit exparte. . The present applicant, after passing the exparte judgment and decree in the above mentioned suit, filed execution proceedings against the respondents. In the said execution proceedings also, the respondents appeared belatedly and filed application for stay of execution proceedings on 23-03-1998, but the Executing Court rejected the said application. . It is the case of the revision applicant that, with malafide intention, the respondents herein filed application for restoration of the above referred suit under Order 9 Rule 13 of the Code of Civil Procedure beyond limitation with the application of condonation of delay. The said application for condonation of delay was numbered as Misc. Civil Application No. 109 of 1997. The trial Court, after recording the evidence of both the sides and after hearing the parties, rejected 4 CRA97.05 the said application for condonation of delay on 24-04-2003, on the ground that, there is no sufficient cause made out by the present respondents for condonation of delay. Consequently, the said restoration application is finally disposed of by the learned trial Court. . Thereafter, the original defendants i.e. respondents herein, filed appeal against the exparte judgment and decree passed by the learned trial Court in Special Civil Suit No. 254 of 1996 after a long delay which is near about 6-1/2 years. The said appeal is accompanied with delay condonation application which is numbered and registered as Civil Misc. Application No. 89 of 2003. In the said Civil Misc. Application No. 89 of 2003 the respondents herein contended that, the above referred Misc. Civil Application No. 109 of 1997 was for restoration of the Special Civil Suit No. 254 of 1996, which was decided and decreed as exparte. According to the revision applicant, this fact itself shows that, the original defendants 5 CRA97.05 with malafide intention availed the different legal remedies one after another, in fact, the defendants could have take the precaution to avail proper single remedy or both remedies available to them simultaneously. . The said Civil Misc. Application No. 89 of 2003 for condonation of delay filed by the respondents herein, came to be allowed by order dated 17-01-2005. Being aggrieved by the said order allowing the application for condonation of delay in filing the appeal by the District Court, Dhule, this Civil Revision Application is filed. 3. Learned Counsel appearing for the revision applicant submits that, the lower appellate Court exercised its jurisdiction with material irregularity in allowing the application for condonation of delay without taking into consideration the fact that, the remedy availed by the respondents and the application filed by them for condonation of delay are barred by the 6 CRA97.05 principles of “res-judicata” and “estoppel”. It is submitted that, the lower appellate Court exercised its jurisdiction illegally and not complied with the mandatory provisions of Order 9 Rule 13 of the Code of the Civil Procedure Code. It is further submitted that, the lower appellate Court has taken a wrong and lenient view on the ground that, the respondent is a public authority and the matter is concerned with public money. In fact, there is no law which provides different treatment for different aggrieved persons whether corporal or incorporal with respect of law of limitation unless expressly provided. It is further submitted that, the dispute is not regarding public money. Learned Counsel further submitted that, the lower appellate Court has not taken into consideration the fact that, the respondents did not approach the Court with clean hands. The respondents misled the lower appellate Court that, their application for restoration had rejected, in fact, that restoration application never registered or numbered. But the application 7 CRA97.05 for condonation of delay filed alongwith restoration application was rejected by the trial Court on merits, therefore, Section 14 of the Limitation Act never attracted in the facts of the case. It is further submitted that, the remedy under Order 9 Rule 13 of the Code of Civil Procedure was available to the present respondents and thereby they have rightly preferred the application under Order 9 Rule 13 of the Code of Civil Procedure and therefore, it cannot be said that, the advice given by their Advocate to avail such remedy was wrong advice. . It is further submitted that, the revision application is perfectly maintainable in view of the observations of this Court in the case of Chandu s/o Jagannath Ambekar and another vs. Digambar s/o Kisanrao Kulkarni and others, reported in 2004(4) Mh.L.J. 69. Learned Counsel further invited my attention to the judgment of this Court in the case of Maharashtra Rajya Sahakari Adiwasi Vikas Mahamandal Maryadit through 8 CRA97.05 its Regional Manager vs. M/s. Kanti Shantilal and Company, reported in 2003 Vol. 105(2) Bom.L.R. 349 and submitted that, time consumed in the proceedings under Order 9 Rule 13 of the Civil Procedure Code to set aside exparte decree cannot be treated as sufficient cause for not preferring the appeal within the period of limitation. 4. Learned Counsel further submits that, the term “sufficient cause” as contemplated under Section 5 of the Limitation Act even if it is to receive liberal construction it must comply with concept of reasonable time and proper conduct of concerned party. In support of this contention, learned Counsel appearing for the revision applicant placed reliance on the judgment of the Hon’ble Supreme Court in the case of Balwant Singh (dead) vs. Jagdish Singh & others, reported in 2010(6) ALL MR 480. Learned Counsel further invited my attention to the judgment of this Court in the case of Laxman N. Divekar vs. State of 9 CRA97.05 Maharashtra, reported in A.I.R. 1998 Bombay 176 and submitted that, limitation is prescribed by law and the said provision has to be applied without carving separate standards, equally to all litigants, be it the State or private party. Learned Counsel further submitted that, the lower appellate Court even without adverting to the contentions in the application for condonation of delay, has condoned the delay for altogether different reasons which are unsustainable. Therefore, there is a clear perversity in the findings recorded by the lower appellate Court while condoning the delay. . Learned Counsel further invited my attention to the judgment in the case of Life Insurance Corporation of India vs. S. Parekh and Company and others, reported in 2008(6) Bom.C.R. 494 and submitted that, this Court in said judgment held that, "in the absence of factual date disclosing sufficient cause for the inordinate delay in approaching the Court, no 10 CRA97.05 amount of crocodile tears and/or sermon can satisfy the Court to condone such delay." 5. Learned Counsel further submits that, Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of “sufficient cause” is purely an individualistic test. In support of this contention, he placed reliance on the reported judgment of the Hon’ble Supreme Court in the case of R.B. Ramlingam vs. R.B. Bhuvaneswari, reported in 2009 ALL SCR 508. 6. The learned Counsel further invited my attention to the judgment of this Court in the case of Sureshchandra s/o Bagwantrao Doiphode vs. Uttam s/o Dattatraya Jadhav and others, reported in 2010(6) ALL MR 552 and submitted that, this Court can certainly interfere in its revisional jurisdiction if the findings recorded by the appellate Court are perverse and if the appellate Court failed to consider the evidence on record 11 CRA97.05 which amounts to failure to exercise the jurisdiction vested in it under the law and whole judgment is vitiated because of it. Learned Counsel further submitted that, even after disposal of the appeal also, the Court can examine the correctness of the order condoning the delay in said appeal. 7. It is further submitted that, the principle of "res-judicata" is applicable in different proceedings arising out of the same course of action and it also apply in different stages of the same proceedings. In support of this contention, he pressed into service the judgment of the Supreme Court in the case of Ishwar Dutt vs. Land Acquisition Collector and another, reported in 2005 SAR (Civil) 684 and also another judgment of the Supreme Court in the case of Amarendra Komalam and another vs. Usha Sinha and another, reported in 2005 SAR (Civil) 451. It is further submitted that, once the application for setting aside exparte decree is dismissed, the 12 CRA97.05 respondents are not entitled to raise the subject matter of application under Order 9 Rule 13 of the Code of Civil Procedure all over again in appeal before High Court in first appeal because it may lead to conflict of decisions which is not contemplated in law. In support of this contention, he placed reliance on the judgment of the Supreme Court in the case of Bhanu Kumar Jain vs. Archana Kumar and another, reported in 2005 SAR (Civil) 165. . Learned Counsel further submitted that, if the party seeking benefit of the provisions of Section 14 of the Limitation Act failed in earlier proceedings on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Section 14 of the Limitation Act. Therefore, learned Counsel appearing for the revision applicant submits that, this Civil Revision Application deserves to be allowed. 13 CRA97.05 8. On the other hand, learned Counsel appearing for the respondent No.1 submitted that, the application for condonation of delay which was filed by the respondents was mainly on two grounds that, the remedy of preferring appeal was available to the Municipal Council, however, as per advice given by the Counsel appearing for the Municipal Council, the application for restoration of the suit was filed under Order 9 Rule 13 of the Code of Civil Procedure. Learned Counsel invited my attention to the contents of the application which is placed at Exhibit-B of the compilation from pages 18 to 22. He further submits that, time which was spent in prosecuting the application which was filed under Order 9 Rule 13 of the Code of Civil Procedure is required to be taken into consideration while considering the prayer for condonation of delay in filing the appeal. He further submitted that, Civil Misc. Application No. 109 of 1997 was preferred for restoration of the original suit which came to be decided on 24-04-2003 by the trial Court and as such, in view 14 CRA97.05 of the provisions of Section 14 of the Limitation Act, the time till 24-04-2003 is saved and will have to be excluded from consideration as Municipal Council had bonafide brought the said restoration application with due diligence and there was no malafide on its part. The officers of the Municipal Council believed on the advice of their Advocate and under such assumption only, the said restoration application came to be filed. It is further submitted that, respondent No.1 is a body corporate constituted under the law regulated by rules and regulations. Certain steps are to be taken before bringing any legal action before the Court of law which consumes some time and under such circumstances, some time was consumed in taking proper decision. There was no deliberate or intentional delay or negligence on the part of the Municipal Council. . Learned Counsel appearing for the respondents vehemently submitted that, the Civil Revision Application cannot be entertained against 15 CRA97.05 the order of condoning the delay. Learned Counsel invited my attention to the judgment of the Supreme Court in the case of Major S.S. Khanna vs. Brig. F.J. Dillon reported in A.I.R. 1964 SC 497(1) and in particular Paragraphs-7 and 33 of the said judgment and submitted that, this Court may not entertain this Civil Revision Application. . Learned Counsel appearing for the respondents invited my attention to the judgment of the Supreme Court in the case of G. Ramegowda, Major etc. vs. The Special Land Acquisition Officer, Bangalore, reported in A.I.R. 1998 SC 897 and submitted that, the expression ‘sufficient cause’ in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of 16 CRA97.05 delay. He further invited my attention to the another judgment of the Supreme Court in the case of State (NCT of Delhi) vs. Ahmed Jaan, reported in AIR 2009 SC (Supp) 695 and submitted that, the expression ‘sufficient cause’ should received a liberal construction. He further invited my attention to the judgment of this Court in the case of Ghyanchand s/o Lalchand vs. Municipal Corporation, Dhule, reported in 2009 (3) Mh.L.J. 317, and submitted that, the discretion exercised by the Court in condoning the delay would not ordinarily be disturbed by the Superior Court much less in revisional jurisdiction unless the exercise of discretion was wholly on untenable grounds or arbitrary or perverse. Learned Counsel further submitted that, in the present case, after condonation of delay by the lower appellate Court, the appeal is registered and further it is placed for arguments. Therefore, this Court may not interfere at this stage and reject this Civil Revision Application. 17 CRA97.05 9. I have given anxious consideration to the rival submissions of the Counsel appearing for the parties. Perused the averments in the Civil Revision Application, annexures thereto, impugned judgment and order passed by the lower appellate Court and also other documents placed on record by the parties and the judgments relied upon by the learned Counsel appearing for the respective parties. Since first objection is raised by the Counsel for the respondents about the maintainability of the Civil Revision Application, therefore, I feel it appropriate to deal with the said point first and then to proceed to decide other points raised in the matter. . The Hon’ble Supreme Court in the case of Shiv Shakti Co-op. Housing Society vs. Swaraj Developers, reported in (2003) 6 SCC 659 has considered the provisions of Section 115 proviso (after amendment by Act 46 of 1999 w.e.f. 01-07-2002). In the aforesaid pronouncement, the 18 CRA97.05 Hon’ble Supreme Court held that, if the impugned order is interim in nature or does not finally decide the lis, the revision under Section 115 will not be maintainable. The legislative intent is crystal clear. There is marked distinction in the language of Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. . Relying on the said judgment, this Court in the case of Chandu s/o Jagannath Ambekar and another vs. Digambar s/o Kisanrao Kulkarni and 19 CRA97.05 others (supra) has taken a view that, if the delay condonation application is allowed by the lower Court, a revision against such an order can be maintained by the respondent-opponent in such a case because if the Court below had made an order on such an application in favour of the respondent/defendant the proceeding could have been finally disposed of. (Emphasis supplied). . In the present case, the application filed by the respondents herein, for condonation of delay in filing the appeal, is allowed by the lower appellate Court. If the lower appellate Court had made an order on such an application in favour of the revision applicant, the proceeding could have been disposed of. Therefore, in my considered view, the revision application is maintainable. The judgments which are relied upon by the Counsel for respondent No.1 are delivered before the Amendment Act 46 of 1999, has come into force. 20 CRA97.05 10. Another point which is raised by the Counsel for the revision applicant that, since the appeal is now numbered and fixed for final hearing, this Court may not enter into the exercise to see the correctness of the order on an application for condonation of delay is concerned, same point is answered by the Supreme Court in the case of G. Ramegowda, Major etc. vs. The Special Land Acquisition Officer, Bangalore (supra). The Supreme Court in the said judgment held; " the fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called 'dependent-orders' and if the order excusing the delays is itself set aside in the Supreme Court appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory." (Emphasis supplied). 21 CRA97.05 11. As stated earlier, the respondents herein filed Civil Misc. Application No. 89 of 2003 for condonation of delay. In para-1 of the said application for condonation of delay, it is stated that, in the Special Civil Suit No. 254 of 2006 which was filed by the original plaintiff i.e. revision applicant herein, the respondents herein caused appearance, however, unfortunately they could not file its written statement. Consequently, the said Special Civil Suit No. 254 of 1996 came to be decided against the Municipal Council by the trial Court. . In Para-2 of the said application for condonation of delay, it is stated that, though the remedy of preferring appeal was available to the Municipal Council, as per the advise given by the learned Counsel appearing on behalf of Municipal Council in the said suit, an application for restoration of the said suit came to be filed in the same Court which came to be registered as Misc. Civil Application No. 109 of 1997 in the 22 CRA97.05 Court of the learned Civil Judge, S.D. Dhule. However, the said Misc. Civil Application No. 109 of 1997 was dismissed by the Civil Judge, S.D. Dhule. . Being aggrieved and dissatisfied with the said judgment and decree passed in Special Civil Suit No. 254 of 1996 dated 29-07-1997 the applicants intended to prefer an appeal before the lower appellate Court. However, there is delay in filing the appeal and therefore, the applicants have moved the instant petition for condonation of delay. . The application for condonation of delay was moved on the grounds that, as per advise of the Advocate appearing on behalf of the Municipal Council, Misc. Civil Application No. 109 of 1997 was preferred for restoration of the original suit on file, which came to be decided on 24-04-2003. As such, in view of the provisions of Section 14 of the Limitation Act, time till 24-04-2003 is 23 CRA97.05 saved and will have to be excluded from consideration as the Municipal Council had bonafidely brought the said restoration application with due diligence and there was no malafides on its part. . In Para-4 of the said application, it is stated that, the appeal should have been preferred within a month from 24-04-2003, however, certified copies of the impugned judgment and decree were applied on 02-07-2003. Thus, there is delay of two months and eight days in applying for the certified copies. It is stated in Para-4 of the said application that, the impugned judgment and decree is dated 29-07-1997 and as clarified in earlier paragraph, limitation is saved up till 24-04-2003 in view of Section 14 of the Limitation Act on which date the application for restoration of the suit came to be dismissed by the trial Court. . It is further stated in Para-5 of the 24 CRA97.05 said application that, applicant No.1 is a body corporate constituted under law regulated by its rules and regulations. Certain steps are to be taken before bringing any legal action in the Court of law, which consumes some time. Under these circumstances, there was no deliberate or intentional delay or negligence on the part of the Municipal Council. The subject matter in the present appeal is of public interest also. Other contentions are also taken in Para-5 of the said application and ultimately in Para-6 of the said application, it is prayed that, the delay of six years in filing the present appeal may kindly be condoned in the interest of justice. The period of limitation may kindly be saved under Section 14 of the Limitation Act. (Emphasis supplied). 12. On careful reading of the averments in the abovementioned application for condonation of delay, it is abundantly clear that, the respondents who are applicants in the said application, have not stated anywhere that their 25 CRA97.05 application was under Order 9 Rule 13 of the Code of Civil Procedure and the said suit has been rejected on the ground of delay. The averments in the application gives impression that Misc. Civil Application No. 109 of 1997 was for restoration and the same came to be dismissed. In fact, the truth is that, the said Misc. Civil Application No. 109 of 1997 was filed by the respondents herein, for condonation of delay in filing the application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside exparte decree. Therefore, I find considerable force in the arguments advanced by the Counsel for the revision applicant that, the respondents did not approach the District Court with clean hands and they did not disclose all relevant facts in the said application. At the cost of repetition, it has to be observed that, on careful perusal of the averments in the application for condonation of delay, it is abundantly clear that, the respondents nowhere have stated that, their application for restoration of Special Civil Suit 26 CRA97.05 No. 254 of 1996 came to be dismissed on the ground of delay. In fact, there was no occasion to number the restoration application, since the application filed for condonation of delay in filing the said application, was rejected by the trial Court. 13. Upon careful perusal of the contents of the application, three grounds are taken by the respondents in the application for condonation of delay. Firstly, though the remedy of appeal was available to the respondents to