Case Note & Summary
The appellant, who was defendant no.1 in a partition suit (Regular Civil Suit No. 799 of 1992), challenged the decree passed by the trial court on 26th April 2013. The trial court decreed the suit after the appellant failed to lead evidence despite multiple opportunities. The appellant then filed a first appeal before the District Judge, Islampur, along with an application for condonation of 291 days delay. The District Judge dismissed the appeal on merits and also rejected the condonation application, finding the grounds of leg injury and lawyers' strike insufficient. The appellant then filed a second appeal before the High Court. The High Court noted that the appellant had not formulated any substantial question of law in the memorandum of appeal, which is mandatory under Section 100 of the Code of Civil Procedure, 1908. The court also found that the District Judge's discretion in rejecting the condonation application was not perverse or arbitrary. The concurrent findings of fact by the lower courts were based on evidence and did not warrant interference. Consequently, the High Court dismissed the second appeal and the pending civil applications.
Headnote
A) Condonation of Delay - Sufficient Cause - Section 5 of Limitation Act, 1963 - The appellant sought condonation of 291 days delay in filing the first appeal on grounds of leg injury and lawyers' strike - The District Judge found the explanation insufficient as the injury was not supported by medical evidence and the strike period was only two months - Held that the discretion exercised by the District Judge was not perverse or arbitrary (Paras 1-4).
B) Second Appeal - Substantial Question of Law - Section 100 of Code of Civil Procedure, 1908 - The appellant failed to formulate any substantial question of law in the memorandum of appeal - The concurrent findings of fact by the trial court and first appellate court were based on evidence - Held that no interference is warranted in second appeal (Paras 5-6).
Issue of Consideration
Whether the delay of 291 days in filing the first appeal was properly condoned and whether the second appeal involves any substantial question of law.
Final Decision
The High Court dismissed the second appeal and the pending civil applications, upholding the concurrent findings of the lower courts.
Law Points
- Condonation of delay
- substantial question of law
- second appeal
- partition suit
- limitation
Case Details
2019 LawText (BOM) (03) 212
Civil Application No. 338 of 2016 in Second Appeal (ST) No. 29807 of 2015 alongwith Civil Application No. 336 of 2019 in Civil Application No. 904 of 2017 and Civil Application No. 339 of 2016
Mr. Dilip Shinde for applicant-appellant, Mr. Nikhil Pawar for respondents no.1, 2 and 4
Shri. Dattu Bala @ Santu Patil
Shri. Maruti Bapu Patil, Shr. Namdev Bala Patil, Smt. Gangubai Balu Pawar, Shri. Dnyandev Bapu Gaikwad
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Nature of Litigation
Second appeal against the judgment and decree in a partition suit.
Remedy Sought
The appellant sought to set aside the decree of the trial court and the dismissal of his first appeal.
Filing Reason
The appellant was aggrieved by the decree of partition passed by the trial court and the dismissal of his first appeal by the District Judge.
Previous Decisions
The trial court decreed the suit on 26th April 2013. The first appellate court dismissed the appeal and rejected the application for condonation of delay.
Issues
Whether the delay of 291 days in filing the first appeal was properly condoned?
Whether the second appeal involves any substantial question of law?
Submissions/Arguments
The appellant argued that the delay was due to leg injury and lawyers' strike.
The respondents opposed the condonation and argued that the appeal lacked merit.
Ratio Decidendi
In a second appeal under Section 100 of CPC, the appellant must formulate a substantial question of law. The discretion of the first appellate court in condoning delay under Section 5 of the Limitation Act is not to be interfered with unless it is perverse or arbitrary.
Judgment Excerpts
The appellant was defendant no.1 in the suit for partition being Regular Civil Suit No. 799 of 1992.
The trial Court, therefore afforded one more opportunity to the appellant to lead evidence on 5th April, 2013 but once again he failed to adduce the evidence.
The applicant sought condonation of delay on two grounds, namely, (i) that he had sustained injury to his leg... and (ii) that due to the strike of lawyers...
The appellant has not formulated any substantial question of law in the memorandum of appeal.
Procedural History
The suit was filed in 1992, decreed on 26th April 2013. The appellant filed first appeal with delay of 291 days, which was dismissed by the District Judge. The appellant then filed second appeal before the High Court, which was dismissed on 8th March 2019.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Limitation Act, 1963: Section 5
