Case Note & Summary
The case involves a Civil Revision Application filed by Bhimraj and Kishor Dusing challenging an order dated 21.08.2021 passed by the District Judge-1, Vaijapur, which rejected their application for condonation of delay of 4 years 7 months and 8 days in filing an appeal against an order dated 22.09.2014 granting a Heirship Certificate under the Bombay Regulation Act, 1827. The applicants had initially filed a review petition against the order, which was rejected on 24.02.2015, and also filed a civil suit (R.C.S. No. 144/2015) for declaration of ownership and permanent injunction. Much later, they filed an appeal along with the delay condonation application, citing the pendency of the review petition and civil suit, and alleged non-instruction by their advocate as reasons for the delay. The District Judge rejected the application, holding that the grounds were not sufficient. The High Court, in revision, examined the submissions. The applicants' advocate relied on the judgment in Pattherao Narsu Patil Vs. Gangubai A. Lad and others (2019 (3) Mh.L.J. 121), but the court distinguished it. The High Court held that the review petition was filed and rejected within a short period, and the civil suit was a separate proceeding that did not justify the delay in filing the appeal. The applicants failed to provide a satisfactory explanation for the entire period of delay. The court found no illegality or material irregularity in the impugned order and dismissed the Civil Revision Application.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The applicants sought condonation of delay of 4 years 7 months and 8 days in filing appeal against order granting Heirship Certificate under Bombay Regulation Act, 1827. The grounds urged were pendency of review petition and civil suit, and alleged non-instruction by advocate. The District Judge rejected the application. The High Court held that the grounds were not sufficient to constitute 'sufficient cause' under Section 5 of the Limitation Act, 1963. The review petition was filed and rejected within a short period, and the civil suit was a separate proceeding. The applicants failed to explain the delay for the entire period. (Paras 1-8)
B) Civil Procedure Code - Order 43 Rule 1 - Civil Revision - The order rejecting condonation of delay is revisable under Section 115 of CPC. The High Court examined the impugned order and found no illegality or material irregularity. The District Judge had correctly applied the law and exercised discretion judiciously. (Paras 1, 8)
Issue of Consideration
Whether the District Judge erred in rejecting the application for condonation of delay of 4 years 7 months and 8 days in filing the appeal against the order granting Heirship Certificate.
Final Decision
The Civil Revision Application is dismissed. The order dated 21.08.2021 passed by the District Judge-1, Vaijapur, rejecting the application for condonation of delay, is confirmed. No order as to costs.
Law Points
- Condonation of delay
- Sufficient cause
- Limitation Act
- 1963
- Section 5
- Review petition not a ground for delay
- Civil suit not a ground for delay
- Advocate's negligence not a ground for delay
Case Details
2022 LawText (BOM) (12) 27
Civil Revision Application No. 10 of 2022
Mr. S. P. Salgar for applicants, Mr. S. B. Pulkundwar (AGP) for respondent no. 1, Mr. S. S. Wagh for respondent no. 2
Bhimraj s/o Nanaji Dusing and Kishor s/o Nanaji Dusing
The State of Maharashtra and Smt. Venubai w/o Mohaniraj Londhe (deceased) through LR Dnyandeo s/o Mohaniraj Londhe
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Nature of Litigation
Civil Revision Application challenging rejection of condonation of delay application in appeal against order granting Heirship Certificate.
Remedy Sought
The applicants sought to set aside the order dated 21.08.2021 rejecting their application for condonation of delay and to condone the delay of 4 years 7 months and 8 days in filing the appeal.
Filing Reason
The applicants' application for condonation of delay was rejected by the District Judge, and they challenged that order by way of Civil Revision Application.
Previous Decisions
The Civil Judge, Senior Division, Vaijapur allowed the petition for Heirship Certificate on 22.09.2014. The applicants' review petition was rejected on 24.02.2015. The District Judge rejected the condonation of delay application on 21.08.2021.
Issues
Whether the District Judge erred in rejecting the application for condonation of delay of 4 years 7 months and 8 days in filing the appeal against the order granting Heirship Certificate.
Submissions/Arguments
Applicants argued that delay was caused due to non-instruction by advocate and time consumed in review petition and civil suit, relying on Pattherao Narsu Patil Vs. Gangubai A. Lad (2019 (3) Mh.L.J. 121).
Respondent opposed the application, arguing that the grounds were not sufficient to condone the delay.
Ratio Decidendi
The grounds of pendency of review petition and civil suit, and alleged non-instruction by advocate, do not constitute 'sufficient cause' under Section 5 of the Limitation Act, 1963 to condone a delay of 4 years 7 months and 8 days. The applicants failed to explain the delay for the entire period. The District Judge's order was neither illegal nor suffered from material irregularity.
Judgment Excerpts
The grounds stated in the application for condonation of delay was that the delay was caused because the applicants had preferred review petition, so also they had preferred a civil suit and also that their advocate had not instructed them for preferring an appeal.
The learned advocate for the applicants argued that the delay has been caused due to non instructions of advocate in lower court and so also much time had consumed in preferring the review petition and civil suit.
The ratio laid down therein is applicable to the present matter.
Procedural History
On 22.09.2014, Civil Judge, Senior Division, Vaijapur allowed petition for Heirship Certificate under Bombay Regulation Act, 1827. On 24.02.2015, review petition filed by applicants was rejected. Applicants also filed R.C.S. No. 144/2015 for declaration and injunction. Thereafter, applicants filed appeal with delay condonation application. On 21.08.2021, District Judge-1, Vaijapur rejected the delay condonation application. On 08.12.2022, High Court dismissed the Civil Revision Application.
Acts & Sections
- Limitation Act, 1963: Section 5
- Bombay Regulation Act, 1827:
- Code of Civil Procedure, 1908 (CPC): Section 115, Order 43 Rule 1
