1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Application (CAA) No.106 of 2010 In Appeal against Order No.118 of 2009 (Vinodkumar s/o Makhanlal Chaudhary v. Kailashkumar s/o Makhanlal Chaudhary) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri A.A. Gupta, Advocate for Applicant. Shri P.S. Sadavarte, Advocate for Respondent. Coram : R.K. Deshpande, J. Dated : 7th October, 2010 Oral Order : 1. This is an application under Section 5 of the Limitation Act for condonation of delay of 46 days caused in filing an appeal against order. 2. By an order dated 16-4-2008, the learned 4 th Joint Civil Judge, Senior Division, Nagpur, allowed the application Exhibit 124 filed by the plaintiff under Order 13, Rule 11 of the Code of Civil Procedure for striking out the defence. This order was subject matter of challenge in Writ Petition 2 No.4262 of 2008. This Court issued the notice in the said matter on 26-9-2008 and granted an ad interim stay to the proceedings before the Trial Court. On 10-7-2009, by a speaking order, this Court accepted the contention raised by the respondent that an appeal is maintainable against the order impugned in the petition and in view of the decision of the Apex Court in Nawab Ali Khan and others v. Nawab Imdad Jah. Bahadur and others, reported in (2009) 5 SCC 162, the petitioner was permitted to convert writ petition into an appeal against order. It was made clear that even if the appeal may be registered as such, the question as to whether it would be within limitation or not, is kept open. The interim order was continued for a period of two weeks. Accordingly, writ petition was converted into an appeal against order. 3. On 16-11-2009, the parties were heard for admission of appeal against order and in spite of the fact that this Court had on 10-7-2009 made it clear that the question of limitation is kept open, no objection was raised that the appeal was barred by limitation. This appeal was admitted and the interim stay to the proceedings before the Trial Court was continued. Shri 3 Sadavarte, the learned counsel appearing for the respondent, submitted that immediately on the next day, i.e. 17-11-2009, Civil Application No.161 of 2009 was filed by him for setting aside the order dated 16-11-2009 passed by this Court, by which the appeal was admitted and the interim order was continued. This application was listed before this Court on 5- 1-2010. It was pointed out by the learned counsel for the respondent that the appeal ought not to have been admitted, as the same was barred by law of limitation. This Court, therefore, passed an order that the contentions would be considered at the time of hearing of the matter. 4. On 12-4-2010, when the matter was listed before this Court for final hearing, none appeared for the respondent and hence in order to provide an opportunity to the respondent, the matter was adjourned for the next week. Again on 21-4-2010, none appeared for the respondent. However, the learned counsel for the appellant pointed out that the appeal against order was not filed within a period of limitation and hence an application for condonation of delay was required to be filed. He, therefore, sought time of two weeks to file such application. The matter was 4 accordingly adjourned. The application for condonation of delay was thus filed on 26-7-2010. 5. In the application for condonation of delay, the delay sought to be condoned, is shown of 46 days counted from 6-8-2008, i.e. the date on which the certified copy was obtained, to 22-9-2008, i.e. the date on which Writ Petition No.4262 of 2008 was filed. According to him, though the permission to convert writ petition into an appeal against order was granted on 10-7-2009, the delay is required to be explained only till 22-9-2008, when writ petition was filed and not till 10-7-2009. The reason for seeking condonation of delay, as stated in para 10, is that the applicant was pursuing with due diligence, under his erroneous but bona fide assumption, that a remedy of writ petition lies against the impugned order and was unaware of the provision regarding filing of an appeal within the prescribed period of limitation. According to the learned counsel for the petitioner, although this Court permitted the petitioner to convert writ petition into an appeal against order by order dated 10-7-2009, the applicant was unaware of the delay caused. 5 6. Shri Gupta, the learned counsel, submits that once the matter is admitted without any objection as to the delay caused in filing an appeal, it shall be presumed that the delay has been condoned. Alternatively, he submits that even if it is assumed that the delay caused is not condoned and the matter is admitted, still it would be open for the applicant to file an application for condonation of delay even at the subsequent stage, as and when it comes to his notice that the appeal preferred was time-barred. He submits that it is not necessary that the memorandum of appeal should be accompanied by an application for condonation. He relied upon the decision of the Apex Court State of M.P. and another v. Pradeep Kumar and another, reported in (2000) 7 SCC 372, wherein it has been held that filing of the memorandum of appeal without application for condonation of delay would not result in fatal consequences and unintentional lapses of a litigant should not result in closing of the doors of the Court permanently. 7. The respondent has filed reply to the application for condonation of delay and the same is opposed. The averments made in the application are denied and it is submitted that the 6 applicant has intentionally filed writ petition only with a view to protract the litigation and such an act was not bona fide. It is further submitted that the applicant has explained the delay only of 46 days from 6-8-2008 to 22-9-2008 and there is no explanation for the period of 384 days from 22-9-2008 to 10-7-2009. According to Shri Sadavarte, this Court permitted the conversion of writ petition into an appeal against order by an order dated 10-7-2009 and hence, at the most it can be assumed that the appeal was filed on 10-7-2009. It was, therefore, obligatory on the part of the applicant to explain the delay of 384 days from 6-8-2008 to 10-7-2009. The applicant having failed to explain the said delay, the application for condonation of delay is liable to be rejected. 8. Shri Sadavarte, the learned counsel for the respondent, does not dispute that when the appeal was admitted on 16-11-2009, he did not raise any objection regarding the delay caused in filing an appeal. He, however, submits that the order of admission of appeal is liable to be revoked on the ground that the appeal was barred by limitation and that the memorandum of appeal did not accompany the application for condonation of 7 delay. He further submits that even after bringing to the notice of the applicant on 17-11-2009 by way of Civil Application No.161 of 2009 that there is a delay caused in filing an appeal, the application for condonation of delay has been filed on 26-7-2010, which should not be entertained at this stage. According to him, the entire conduct on the part of the appellant is not bona fide and the appeal is required to be dismissed. 9. Shri Sadavarte has relied upon the following authorities : (1) AIR 1979 Bombay 33 (Jagdish Krishna Kapur v. M/s. Vachha and Co. and another), for the proposition that the application for certified copy has to be filed within a period of limitation. (2) 2006(6) Mh.L.J. 759 (Khatunbi wd/o Mohammad Sayeed and others v. Aminabai w/o Mohammad Sabir), in support of the proposition that in case of delay in filing the appeal, the memo of appeal shall be accompanied by an application supported by an affidavit stating the facts on which the appellant seeks to satisfy the Court that he had sufficient cause 8 for not preferring an appeal within the period of limitation. In this case, it was held that the application for condonation of delay in filing an appeal cannot be filed as a matter of right after filing an appeal. In case there is a delay in filing the appeal, then such application should be filed along with the memo of appeal and not thereafter. (3) 2007(1) Bom.C.R. 671 (Waghjai Devi Endowment Trust and others v. Sanjiv Kashinath Vare and others), for the proposition that there is no material available on record to support the reasons for condonation of delay. (4) (2007) 2 SCC 322 (D. Gopinathan Pillai v. State of Kerala and another), in support of the proposition that the delay cannot be condoned merely on sympathetic ground, when the mandatory provision has not been complied with and the delay has not been properly, satisfactorily and convincingly explained. (5) 2010(5) Mh.L.J. 262 (Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another), for the proposition that the Legislature does not 9 prescribe limitation with the objection of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. In this case, it was held that the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact the appeal was filed after more than four years. The judgment of the High Court condoning the delay was, therefore, set aside. (6) 2009(2) ALL MR 429 (Commissioner Nagar Parishad Bhilwara v. Labour Court Bhilwara and another), for the proposition that the Court while deciding application for condonation ought not to enter into merits of the case and should only consider whether sufficient cause had been shown by the appellant for condoning delay in filing appeal. 10. It is not in dispute that the appeal was preferred after the prescribed time and it has been admitted on 16-11-2009, without there being any order of condonation of delay or recording satisfaction by the Court regarding existence of sufficient cause for not preferring an appeal within the prescribed time by the applicant. Hence the question is whether in the absence of an 10 order of condonation of delay and a finding regarding existence of sufficient cause, as contemplated by Section 5 of the Limitation Act, the order of an admission of an appeal preferred after the prescribed time, has to be revoked or it creates an estoppel or amounts to waiver of an objection that the appeal needs to be dismissed as barred by limitation. 11. The order impugned in the appeal is dated 16-4-2008. The application for certified copy of the order was submitted on 15-7-2008, i.e. on the last date of expiry of period of limitation of 90 days. The certified copy was ready for delivery on 6-8-2008 and it was actually delivered on 11-8-2008. The writ petition was filed on 22-9-2008. This Court permitted conversion of writ petition into an appeal against order by an order dated 10-7-2009. The question is, therefore, whether there was a delay of 46 days caused in filing an appeal, which is to be counted from 6-8-2008 to 22-9-2008, as urged by the applicant, or there was a delay of 384 days, which was required to be explained for the period from 6-8-2008 to 10-7-2009, when this Court permitted to convert writ petition into an appeal, as urged by the respondent. 11 12. It is also not in dispute that when this Court permitted to convert writ petition into an appeal by an order dated 10-7-2009, the appellant did not file an application for condonation of delay and it was filed subsequently on 26-7-2010, when the matter was to be taken up for final hearing. The question is, therefore, whether it is permissible for the appellant to file an appeal without accompanying the application for condonation of delay and whether it is permissible for the appellant to file such application at any subsequent stage till the final hearing of the matter. 13. In order to consider the aforesaid questions, the provision of Section 3 of the Limitation Act is required to be seen. Sub-section (1) of Section 3, which is relevant, is reproduced below : “3. Bar of limitation.--(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.” 12 Perusal of sub-section (1) of Section 3 makes it clear that it mandates that every appeal preferred after the prescribed period shall be dismissed although limitation has not been set up as a defence. It casts an obligation upon the Court to dismiss every appeal preferred after the prescribed period of limitation and it does not require any objection to that effect to be raised by any other party. Sub-section (1) of Section 3 nowhere stipulates the stage at which such appeal is to be dismissed. Hence, it can be dismissed at the stage of admission or even at the time of final hearing. The provision of Section 3 is subject to the provision contained in Sections 4 to 24 of the said Act. 14. Section 5 of the Limitation Act, regarding extension of the prescribed period in certain cases is also relevant and the same is, therefore, reproduced below : “5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted 13 after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” Section 5, reproduced above, intervenes the mandate of Section 3 and it extends the period of limitation, if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. However, Section 5 requires the Court to record such finding at the stage of admission of the appeal and that too upon such prayer being made by the appellant. The power cannot be exercised suo motu. If such prayer is made and the Court records the finding about existence of sufficient cause, the period of limitation shall stand extended by a period covered by sufficient cause. 15. What would then be the position if the Court admits an appeal preferred after the prescribed period of limitation without 14 recording its satisfaction about sufficient cause, either on account of ignorance of the fact that the appeal has been preferred after the prescribed period or on account of the failure of the other side to raise such objection at the time of admission of the matter or if it admits the appeal keeping the question of limitation open to be decided at the time of final hearing. Whether the Court is prevented from dismissing the appeal as barred by time, at the time of final hearing of the matter? 16. In my opinion, in the situation pointed out in earlier para, the question of intervention through Section 5 of the Limitation Act, in the mandate of Section 3 of the said Act, would not arise for the reason that the satisfaction of existence of sufficient cause has not been recorded by the Court while admitting the appeal. In the absence of such satisfaction being recorded by the Court to condone the delay caused in filing an appeal, the mandate of Section 3 to dismiss an appeal preferred after the prescribed period will operate till the stage of final hearing of the matter. It will not, therefore, be necessary for the Court to revoke the order of admission of the matter and the matter can be dismissed on this ground at the time of final 15 hearing. Mere admission of the matter would not amount either to waiver of an objection or an estoppel to dismiss the appeal as barred by time at any subsequent stage. 17. The next question is whether the applicant was required to explain the delay of 46 days up to the date of filing of the writ petition or of 384 days up to the date of conversion of writ petition into an appeal against order. When this Court passed an order on 10-7-2009 permitting the conversion of writ petition into an appeal against order, there were two options, viz. (i) to permit the petitioner to withdraw writ petition with liberty to file an appeal against order, as is available in law, or (ii) to convert the writ petition into an appeal against order. Where writ petition is permitted to be withdrawn with liberty to file an appeal, it becomes necessary for the applicant to file an application for condonation of delay caused till the date of actual filing of an appeal. The reason is obvious that the Appellate Court upon filing of fresh appeal has to be satisfied that the time was spent in prosecuting in good faith the proceedings of writ petition and the proceedings of writ petition are not before it. Though the provisions of Section 14 are not applicable to an appeal, the cause 16 available under Section 14 can be a sufficient cause under Section 5 of the Limitation Act for condonation of delay. The only difference is that under Section 14, once it is shown that the applicant was prosecuting in good faith the other proceedings, then he is, as a matter of right, entitled to get excluded the period spent. In a case under Section 5 of the Limitation Act, the condonation of delay is not as a matter of right, but it is the discretion of the Court. 18. However, when the Court permits the petitioner to convert writ petition into an appeal, it is only upon reaching the satisfaction that the prosecution of writ petition was in good faith and the applicant is entitled to get the benefit of exclusion of such period. Once the conversion is permitted by the Court, the same relates back to the date of filing of writ petition. Such conversion is permissible, when the proceedings are prosecuted in the same Court, but in different jurisdiction. It is not necessary either to file separate application for condonation of delay or to explain the delay from the date of filing writ petition till the date of its conversion. The reason is obvious that proceedings of writ petition are before the Court. In 17 such a situation, the period for condonation of delay needs to be counted up to the date of filing of writ petition and not up to the date of the order of conversion of writ petition into an appeal. In the present case, this Court has permitted conversion of writ petition into an appeal against order on 10-7-2009, and hence the delay was required to be explained only up to the stage of filing of writ petition on 22-9-2008. In view of this, the contention of Shri Sadavarte that the delay was required to be explained till the order of conversion, i.e. 10-7-2009, is rejected. 19. The next question is whether the application for condonation of delay has to be filed along with the memo of appeal or it can be filed at any subsequent stage till the stage of final hearing of the appeal. Shri Gupta, the learned counsel for the applicant, has relied upon the judgment of the Apex Court in Pradeep Kumar's case, cited supra, whereas Shri Sadavarte, the learned counsel for the respondent, has relied upon the judgment of Division Bench of this Court in Khatunbi's case, cited supra. In my opinion, the judgment relied upon by Shri Gupta in Pradeep Kumar's case covers the controversy and the relevant portion, which is contained in para 10, is reproduced below : 18 “ What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3-A? It must be noted that the Code indicates in the immediately preceding Rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said Rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without an accompanying application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up 19 along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay.” In view of the aforesaid law laid down by the Apex Court, it is apparent that there is no rule prescribing for rejection of memorandum of appeal in case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed without application for condonation of delay, the same cannot be held to be fatal. The filing of an application for condonation of delay at subsequent stage cannot be held to be invalid and filing is permissible till appeal is rejected. It has been held that unintentional lapses of a litigant should not result in closing the doors of the Court permanently. In addition to this, as pointed out earlier, the mandate of Section 3 of the Limitation Act is to dismiss an appeal filed after the prescribed period, although the limitation has not 20 been set up as a defence. In view of this provision, the appeal even if admitted without condoning delay, it can be dismissed at the stage of final hearing of the matter and till then it would be open for the appellant to file an application seeking condonation of delay. The requirement of filing an application for condonation of delay along with memorandum of appeal is not mandatory. 20. Shri Sadavarte has relied upon the judgment of the Division Bench in Khatunbi's case, cited supra. The judgment of the Division Bench of this Court in Khatunbi's case does not take into consideration the prior judgment of the Apex Court in Pradeep Kumar's case. Be that as it may, it was not the question directly and substantially involved that whether it is permissible to file an application for condonation of delay after filing of the memorandum of appeal. Even such filing is not held totally impermissible by the Division Bench of this Court. What has been held is that the application for condonation of delay cannot be filed as a matter of right and ultimately it should be accompanied by a memorandum of appeal. In view of this, the judgment is of no help to the respondent. 21 21. The last question is what is the effect of filing of an application for condonation of delay after