1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPEAL FROM ORDER No. 40 OF 2005 Sharad Bhagwat Joshi, Age 47 years, Occu. Service, R/o Kasargalli, Opp. Ram Mandir, At & Post Tq. Rahuri, Dist. Ahmednagar ... APPELLANT VERSUS 1] Bhagwat Puroshottam Joshi, Age 82 years, Occu. Nil [deleted as per order dated 31/05/2005] 2] Anil Bhagwat Joshi, Age 53 years, Occu. Service, R/o Daware Galli, Ahmednagar 3] Mrs. Mangala Sudhakar Upsani Age 49 years, Occu. Household, C/o Milind Sudhakar Upsani, Plot No. B ¼ Kumar Padmalay D.P. Road, Audh, Pune-7. 4] Ratnmala Anil Joshi, Age 45 years, Occu. Household R/o Daware Galli, Ahmednagar deceased through L.Rs. 4-A] Anil S/o Bhagwat Joshi, Age 53 years, Occu. Service, R/o Davare Galli, Ahmednagar 4-B] Shrikant Anil Joshi, Age 35 years, Occu. r/o as above. 2 4-C] Shubhangi Vishnu Deshmukh, Age 32 years, Occu. Household, R/o Chitale Road, Ahmednagar 4-D] Mukund Anil Joshi, deceased L.Rs. A] Madhavi W/o Mukund Joshi, Age 32 years, Occu. Household R/o Davare Galli, Ahmednagar Tq. & Dist. Ahmednagar. B] Renuka S/o Mukund Joshi, Age 11 years, Minor U/G of Madhavi W/o Mukund Joshi R/o Davare Galli, Ahmednagar. C] Abishek Mukund Joshi, Age 9 years, U/G of Madhavi W/o Mukund Joshi, r/o as above 5] Shamala Sharad Joshi, Age 40 years, Occu. Household R/o Kasar Galli, Opp. Ram Mandir, Tq. Rahuri, Dist. Ahmednagar. 6] Bapu Nathu Dudhat, Age 50 years, Occu. Agri, NO. 7 R/o Chandakpur, Tq. Rahuri, Dist. Ahmednagar No. 1,2,4 r/o M.H. No. 1966 Davare Galli, Ahmednagar. [deleted as per order dated 16/12/2005] ..RESPONDENTS. ... ... Mr.P.N. Sonpethkar, Advocate for Appellant Mr. S.Y. Mahajan, Advocate for respondent Nos.2,4-A,4- B & respondent No. 4-D(A to C) CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 30th September, 2010 JUDGMENT PRONOUNCED ON : 06th October, 2010 3 JUDGMENT: This Appeal from Order is filed by the appellant herein aggrieved by the order dated 01st March, 2003 in Misc. Application No. 154 of 2003. 2. The brief stated in the said application are as under :- 3. The appellant herein filed application, under Order 9 Rule 4 for restoration of suit, which was dismissed in default. The appellant who is original applicant had filed Special Civil suit bearing No. 178 of 1998 for partition and separate possession of his ancestral property, against some of the non applicants. The Trial was commenced and suit was fixed for effective hearing on 23rd June, 2003. On the said date when the matter was called out for hearing, the plaintiff and his Advocate remained absent and even no application was filed for adjournment. 4. It is the case of the applicant that on 23rd June, 2003 he was intending to remain present before the Court to lead evidence. However, on 22nd June, 2003 4 he was suffering from ‘Ashtama’, and therefore, could not inform his Advocate Shri Chanodiya. His Advocate Shri Chanodiya was also bed ridden due to paralysis. Therefore, he had file seek note before the District Court, Ahmednagar, which was granted. Though the seek note of Advocate Shri Chanodiya was allowed, his Junior Shri Vaibhav Kasture, Advocate could not filed an adjournment application. When he approached the Court, he learnt that suit was already dismissed in default. It is further contended that his absence was not intentional and therefore, his original suit be restored to its original number and stage. 5. The non-applicant i.e. respondent herein filed their respective say vide Exh. 24,34 and 23 respectively, and denied all the adverse allegations. It is contended that the suit was fixed for effective hearing since long, but plaintiff did not attend the Court on the fixed dates. Therefore, suit was rightly dismissed by the Court. The defendants have also denied that the applicant was under treatment of Dr. Shete and prayed for rejection of application. 6. The learned Judge, framed three issues for 5 its consideration / determination and held that no sufficient cause was shown for non-appearance, so as to recall the order dated 23rd June, 2003. The Court further held that the application filed by the applicant is not within the period of limitation, and accordingly, application came to be dismissed. 7. The learned Counsel appearing for the applicant submitted that sufficient evidence was brought on record, on behalf of the applicant to show that the applicant himself was suffering from Asthma, and also his Advocate was bed ridden due to paralysis. It is further submitted that the Superintendent of District Court was examined before the Court below to bring it on record that leave note was filed by the Advocate of the applicant. The learned Counsel further submitted that the Court below has taken hyper technical view which is not sustainable in law. The learned Counsel further submitted that the interpretation given to section 12 of the Limitation Act by the Court below is not correct interpretation. According to Counsel for the petitioner, the time taken for the issuing of certified copies should have been excluded while 6 counting the period of limitation. The learned Counsel further submitted that, if at all the Court was of the opinion that the application filed by the applicant is not within the period of limitation and barred by one day, opportunity should have been given to the applicant to explain the delay. Therefore, learned counsel relying on Judgment of Madhya Pradesh High Court, in a case of “Suresh Kumar and others V/s Firm Kurban Hussain Taiyab Ali and others” reported in AIR, 1996 MP 151, 1996(0) MPLJ 330” and submitted that the Court should have given liberal interpretation to the provisions of Limitation Act and should have condoned, the delay in the interest of justice. The learned Counsel further placed reliance on the reported Judgment of the Hon’ble Supreme Court, in a case of “ M/s. India House V/s. Kishan N. Lalwani, reported in AIR 2003 SC 2084” and submitted that the period which was taken for issuing certified copy should have been excluded while counting period of limitation. According to Counsel for the applicant, Whether the certified copy is required to be filed along with application for restoration of the suit is not material factor. But even otherwise, said copy is required for obtaining legal opinion and for 7 appropriately drafting the petition. The learned Counsel further submitted that for filing application for restoration, certified copy of the order is necessary. Therefore, learned Counsel would submit that this Appeal deserves to be allowed. 8. On the other hand, learned Counsel appearing for respondent invited my attention to the findings recorded by the Court below and submitted that the Court has rightly held that no sufficient cause had been disclosed in the application, so as to entertain the application for restoration of the suit, and also said application was not within the prescribed period of limitation. According to him, certified copy of the order was not necessary to be filed along with the application. Therefore, there was no question of excluding the period taken for issuing certified copy, from the date of application for certified copy. The learned Counsel in support of his contention placed reliance on the reported Judgment of this Court, in a case of “Madhavi Shrikant Kulkarni V/s. Vishram Shankar Bhakre, reported in 2007(4) Bom.C.R. 180” and in a case of “Bhalchandra Ganesh Naik & another V/s. Sona Hotel through its Proprietor Suresh Melwani & 8 others, reported in 2009(3), Bom.C.R. 780” and contended that if there is no application for condonation of delay, there is no question of entertaining the prayer for condonation of delay. Therefore, he prayed for dismissal of the appeal. 9. I have given due consideration to the rival submission and also perused the appeal memo along with its annexures, and also record made available for the perusal. The application filed on behalf of the appellant came to be rejected, on two ground, firstly, that no sufficient cause was shown in the application, so as to entertain the application for restoration of the suit which was dismissed for non prosecution and secondly, there was delay in filing the application for restoration and there was no separate application for entertaining the prayer for condonation of delay. On going through the contents of the application and also the evidence brought on record by the appellant, it clearly appears that the Advocate who was engaged on behalf of the appellant /applicant was suffering from paralysis and to that effect leave note was filed in the District Court. It is true that 9 the Junior Counsel representing him did not reached in the Court within the time and suit came came to be dismissed. However, fact remains that it has come on record that the leave note was filed by the Advocate for the appellant in the District Court, on the ground that he was suffering from paralysis, that apart the applicant deposed that he was suffering from Asthama on 22nd June, 2000. If the ailment of the applicant and ailment of the Advocate who was engaged on his behalf, taken into consideration, in my opinion, it was sufficient cause to entertain the application. It is true that the matter was listed for hearing from time to time and the appellant or his Advocate did not remain present, but the right of the parties cannot be defeated by passing the orders taking hyper technical view. If the defendant are put to loss due to adjournment sought by the plaintiff, Court can Award the cost and said cost could have been recovered from the applicant. The suit filed by the appellant /applicant is for partition and separate possession. There was no question of any interim order or interim relief running in favour of the appellant, so as to put loss to the respondents. By not attending the proceedings on the date fixed for hearing, the 10 applicant / appellant have not benefited in any manner, and therefore, in my opinion the Court should have entertained the application, taking into consideration sufficient cause disclosed in the application. 10. The second ground, on which the application came to be rejected, is the ground of limitation. According to learned Judge, the application was delayed by one day. According to applicant / appellant the some days were consumed in receiving certified copies, and they were under bonafide impression that their application filed before the Court below was within the period of limitation. The Court has negatived the contention of the applicant’s that the time taken for issuing certified copies needs to be excluded, while counting period of limitation. In fact, if the Judgment of Hon’ble Supreme Court, in a case of M/s. India House V/s. Kishan N. Lalwani cited supra is perused, the Hon’ble Supreme Court has held that ‘underlying principle is that such copy may or may not be required to accompany the petition in the jurisdiction sought to be invoked yet to make up one’s mind for pursuing the next remedy, for obtaining legal 11 opinion and for appropriately drafting the petition by finding out the ground therefor the litigant must be armed with such copy. Without the authentic copy being available the remedy in the higher forum or subsequent jurisdiction may be rendered as a farce.’ (emphasis supplied) The Hon’ble Supreme Court in said Judgment further held that, while computing the period of limitation the time requisite for obtaining the copy has to be excluded without regard to the fact whether the copy was applied for before the expiry period of limitation or not. That apart, depending upon facts and circumstances of given case Court may be called upon to exercise its discretionary powers to condone delay occasioned by time lost either before applying for certified copy or after the delivery thereof. 11. In a case of “Suresh Kumar and others V/s Firm Kurban Hussain Taiyab Ali and others” cited supra, the Madhya Pradesh High Court held in para No. 9 that for condonation of delay under Section 5 of the Limitation Act a formal application would not be required if the facts presented before the Court 12 satisfies the judicial conscience of the Court that the applicant before it was prevented for sufficient cause in bringing the proceedings well within limitation. If the Courts is of the opinion that in absence of formal application the delay cannot be condoned then it is always the duty of the Court to give an opportunity to the applicant before it to move an application explaining the cause for delay and seek condonation under Section 5 of the Limitation Act. The applicant must get proper opportunity to explain the circumstances which prevented it from drawing proceedings well within limitation. 12. Therefore, viewed from any angle, in my opinion, the impugned order passed by the Court below, if examined in the light of the aforesaid pronouncements of the Hon’ble Supreme Court and Madhya Pradesh High Court, is not sustainable. That apart in my opinion, the sufficient cause was disclosed by the appellant’s before the Court below and it was brought on record that not only he was suffering from Asthama, but his Advocate was also bed ridden due to paralysis. After all by delaying the hearing of the suit which was brought by the appellant 13 himself, he has not benefited in any manner. On the contrary, he has put himself to loss. 13. The Counsel appearing for the respondent herein justified in contending that due to number of dates fixed for hearing of the suit, the defendants as well as their Advocate have to remain present and matter was adjourned from time to time on the instance of appellant. Therefore, the defendants are entitled for some cost towards loss and expenses incurred by them. In my opinion, the prayer is just and reasonable. It appears that, matter was adjourned on couple of occasions on the instance of present appellant. Therefore, respondents are entitled for Rs. 10,000/- (Rs. Ten thousand) from the appellant. Therefore, taking over all view of the matter, and in the light of the aforesaid discussion, in my opinion, ends of justice would meet, if the impugned order dated 01st March, 2005 in Misc. Application No. 154 of 2003 is quashed and set aside and appellant is directed to pay Rs. 10,000/- (Rs. Ten thousand) towards cost to the respondents and further Civil Suit No. 178 of 1998 is restored to its original position. 14 14. In the result, the Appeal From Order succeeds, the order dated 01st of March, 2005 passed by the 3rd Joint Civil Judge, Senior Division, Ahmednagar below Exh. 1 in Misc. Application No. 154 of 2003 is quashed and set aside. The Suit for partition and separate possession is restored to its original position. The appellant to pay Rs. 10,000/- (Rs. Ten thousand) to the respondents i.e. original defendants within one month from today. The said amount be deposited before the Trial Court. On depositing said amount liberty to the respondents i.e. Original defendants to withdraw the same. The appeal is allowed to the above extent. 15. Civil Application, if any stands disposed of, in view of the disposal of the Appeal from order. The original record and proceedings if any be sent forthwith to the concerned Court within two weeks from today. [S.S. SHINDE, J] SDM*40.05 AO