Case Note & Summary
The Appellants, Dattaram Keshav Aroskar and others, filed an appeal from order (Appeal from Order No.78 of 2005) in the Bombay High Court challenging the judgment and order dated 19th December 2001 passed by the Additional District Judge, Sindhudurg at Oros, dismissing Civil Misc. Application No.13 of 1996. The background of the case is that the Appellants had preferred Regular Civil Appeal No.8 of 1995 in the Court of District Judge at Sindhudurg challenging the judgment and decree dated 14th December 1994 passed by the Trial Court. That appeal was dismissed for default on 7th December 1995. On 13th March 1996, the Appellants filed an application for restoration of the appeal, but there was a delay in filing that application, so they also filed an application for condonation of delay. The Respondent opposed the application. The learned Additional District Judge dismissed the restoration application, leading to the present appeal. The Appellants argued that the delay was due to the fact that the Appellant No.2 had expired and the Appellants were not aware of the dismissal. However, the Court found that the explanation was not satisfactory and that the Appellants had not shown sufficient cause for the delay. The Court noted that the Appellants had not provided any details about when they came to know of the dismissal or why they waited until 13th March 1996 to file the application. The Court also observed that the Appellants had not been diligent in prosecuting the appeal. Consequently, the Court dismissed the appeal, upholding the order of the lower court.
Headnote
A) Civil Procedure - Condonation of Delay - Section 5 of Limitation Act, 1963 - Restoration of Appeal - The Appellants sought restoration of their appeal dismissed for default, but there was a delay of 96 days in filing the restoration application. The Court held that the explanation for the delay was not satisfactory and the Appellants failed to show sufficient cause for condonation. The appeal against the dismissal of the restoration application was dismissed. (Paras 1-6)
Issue of Consideration
Whether the Appellants made out sufficient cause for condonation of delay in filing the application for restoration of the appeal dismissed for default.
Final Decision
The appeal is dismissed. The order of the Additional District Judge dismissing the restoration application is upheld.
Law Points
- Condonation of delay
- Sufficient cause
- Limitation Act
- 1963
- Section 5
- Restoration of appeal dismissed for default
Case Details
2005 LawText (BOM) (03) 8
Appeal from Order No.78 of 2005
Mr. N.V. Walawalkar with Mr. G.H. Keluskar for the Appellants, Mr. A.S. Khandeparkar for the Respondent
Dattaram Keshav Aroskar & Ors.
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Nature of Litigation
Civil appeal from order challenging dismissal of application for restoration of appeal and condonation of delay.
Remedy Sought
Appellants sought restoration of Regular Civil Appeal No.8 of 1995 which was dismissed for default, and condonation of delay in filing the restoration application.
Filing Reason
The appeal was dismissed for default on 7th December 1995, and the Appellants filed an application for restoration on 13th March 1996 with a delay, which was opposed by the Respondent.
Previous Decisions
The Trial Court's judgment and decree dated 14th December 1994 was challenged in Regular Civil Appeal No.8 of 1995, which was dismissed for default on 7th December 1995. The application for restoration (Civil Misc. Application No.13 of 1996) was dismissed by the Additional District Judge on 19th December 2001.
Issues
Whether the Appellants made out sufficient cause for condonation of delay in filing the application for restoration of the appeal dismissed for default.
Submissions/Arguments
Appellants argued that the delay was due to the death of Appellant No.2 and lack of knowledge of the dismissal.
Respondent opposed the application, contending that the explanation for delay was not satisfactory.
Ratio Decidendi
The Appellants failed to show sufficient cause for condonation of delay under Section 5 of the Limitation Act, 1963, as the explanation for the 96-day delay in filing the restoration application was unsatisfactory and lacked details.
Judgment Excerpts
On 24th March 2005, the Appeal was finally heard and today it is kept for dictation of the Judgment.
The challenge in this Appeal from Order is to the Judgment and Order dated 19th December 2001 by which Civil Misc.Application No.13 of 1996 was dismissed by the learned Additional District Judge, Sindhudurg at Oros.
Procedural History
The Appellants filed Regular Civil Appeal No.8 of 1995 challenging the Trial Court's decree dated 14th December 1994. That appeal was dismissed for default on 7th December 1995. On 13th March 1996, they filed an application for restoration along with an application for condonation of delay. The Additional District Judge dismissed the restoration application on 19th December 2001. The Appellants then filed the present appeal from order in the High Court.
Acts & Sections
- Limitation Act, 1963: Section 5
