1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Civil Revision Application No. 84/2008 (Virendrakumar @ Tolaram Champalalji Baid VERSUS Municipal Council) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri M.P. Khajanchi, counsel for the applicant. Shri S.A. Radke, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 5, 2009. The applicant impugns the order passed by the Ad-hoc District Judge-2, Chandrapur on 28.04.2008 allowing an application for condonation of delay in filing the appeal. The applicant had filed Regular Civil Suit No.664/2000 against the Municipal Council, Brahamapuri seeking a decree for return of 5 H.P. Submersible Pump Sets of Rs.17,500/- as value thereof with interest @ 24% per annum from the date of suit till the realisation of the amount. The trial Court partly decreed the suit and directed the Municipal Council to pay an amount of Rs.17,500/- to the applicant towards the price of the Pump Sets 2 with further direction to the Council to pay compensation @ Rs.50/- per day from 11.08.1994 till the filing of the suit and from the date of the suit till the payment of the value of the Pump Sets, i.e. Rs.17,500/-. The exparte decree was passed against the Municipal Council on 02.05.2002. The Municipal Council filed an appeal before the appellate Court along with Miscellaneous Civil Application No.12/2008 seeking condonation of delay in filing the appeal. The application was filed by the Council on 18.01.2008 and a reply to the same was filed by the applicant on 15.02.2008. By the impugned order dated 28.04.2008, the appellate Court allowed the application for condonation of delay in filing the appeal. Shri M.P. Khajanchi, the learned counsel for the applicant, submitted that the appellate Court committed a gross error in allowing the application for condonation of delay in filing the appeal when 3 the same was filed belatedly after more than five years from the date of passing of the decree on 02.05.2002. It is submitted on behalf of the applicant that the Municipal Council has not sufficiently explained the delay in filing the appeal in the application filed under Section 5 of the Limitation Act. It is submitted on behalf of the applicant that a perusal of the application for condonation of delay reveals that sufficient grounds were not raised by the Municipal Council for seeking the condonation of delay. It is submitted on behalf of the applicant that the Municipal Council had merely stated in the application that the Chief Officers were transferred on a number of occasions and it was not mentioned in the application as to when the Chief Officers were transferred and the other Chief Officers joined the Office. It is also submitted on behalf of the applicant that in view of the delay in invoking the remedy by the Municipal 4 Council, a right has accrued in favour of the applicant and the right could not have been taken away without explaining the delay or without showing sufficient cause for condonation of delay. The learned counsel for the applicant relied on the decisions reported in 2008(6) Mh.L.J. 239 and 2005(11) SCC 197 to substantiate his submissions. Shri S.A. Radke, the learned counsel for the Municipal Council, supported the impugned order dated 28.04.2008. It is submitted on behalf of the Municipal Council that the first appellate Court has rightly exercised the discretion in condoning the delay in filing the appeal as the reason stated in the application for condonation of delay clearly constituted sufficient cause. It is submitted on behalf of the respondent that the Court found that there were some lacunae on the part of the Chief Officer but as large public money was at stake and the applicant was also prosecuted in an Anti Corruption 5 matter and all the documents were seized the first appellate Court rightly allowed the application filed by the Municipal Council. The learned counsel for the respondent stated that the Court was justified in holding that refusal to condone the delay would result into injustice. The learned counsel for the respondent then stated that heavy costs of Rs.5,000/- have been imposed upon the Municipal Council and in the facts and circumstances of the case, the civil revision application is liable to be dismissed. I have considered the submissions made on behalf of the parties, perused the application for condonation of delay, the reply filed thereto and the impugned order dated 28.04.2008. From a perusal of the aforesaid, it is clear that the Ad-hoc District Judge-2, Chandrapur was justified in condoning the delay in filing the appeal. It was categorically stated by the Municipal Council in the application for condonation of delay that there were transfers of 6 Chief Officers on number of occasions and the advocate of Municipal Council had also withdrawn the vakalatnama and had not informed about this fact to the Municipal Council. The trial Court also did not take appropriate care to see whether a notice was issued to the Municipal Council before proceeding any further in the matter in the absence of the counsel for the Municipal Council. The Municipal Council had mentioned in the application that it became aware of the passing of decree on 02.05.2002 only in the 2nd or 3rd week of April, 2007. Several other reasons were also stated in the application for not approaching the first appellate Court within time. The Ad-hoc District Judge-2, Chandrapur considered all the aspects of the matter in the right perspective to hold that the refusal to condone the delay would have resulted in injustice. The Court rightly imposed costs of Rs.5,000/- on the Municipal Council while allowing the application as 7 the Court found that there were some laches or lacunae on the part of the Chief Officer. The first appellate Court considered the fact that the water pumps were worth only Rs.17,500/- and the decree was passed in the favour of the applicant for lacs of rupees. The first appellate Court was justified in considering the fact that the applicant was prosecuted in a case for anti corruption and there was no proper adjudication of the case as all the documents and the record in the said matter were seized by the Anti Corruption Bureau. The Ad-hoc District Judge-2, Chandrapur has recorded cogent reasons for condoning the delay in filing the appeal and no fault can be found with the reasons recorded by the Court. The judgments reported in 2008(6) Mh.L.J. 239 and 2005(11) SCC 197 would not be of much assistance to the case of the applicant as though the principles governing the applications for 8 condonation of delay are more or less settled, each case has to be decided on its own facts. The facts in the reported decisions are distinguishable. In the facts of the present case, the first appellate Court was justified in allowing the application for condonation of delay. The civil revision application is, therefore, dismissed with no order as to costs. The observations made by this Court in this order would, however, not affect the case of parties on merits. JUDGE APTE