Case Note & Summary
The appellants, original defendants in a partition suit, challenged the decree passed by the Civil Judge, JD, Warud in RCS No. 69 of 2008, which granted a share in ancestral land to the respondents (plaintiffs). The appellants filed a first appeal in the District Court, Amravati, along with an application for condonation of delay. The First Appellate Judge refused to condone the delay, holding that sufficient cause was not shown. The appellants then filed a second appeal before the Bombay High Court, Nagpur Bench, arguing that the appellate court should have adopted a justice-oriented approach instead of dismissing the appeal on technical grounds. The High Court, after considering the facts and circumstances, found no substantial question of law involved and dismissed the second appeal, upholding the order of the First Appellate Court.
Headnote
A) Civil Procedure - Condonation of Delay - Section 5 of Limitation Act, 1963 - Sufficient Cause - The appellants failed to explain the delay of [number not mentioned] days in filing the first appeal against the trial court decree. The First Appellate Court held that no sufficient cause was made out. The High Court, in second appeal, found no substantial question of law and dismissed the appeal, observing that the appellate court's discretion was not perverse or arbitrary. (Paras 1-4)
Issue of Consideration
Whether the First Appellate Court erred in refusing to condone the delay in filing the appeal, and whether the Second Appeal lies against such refusal.
Final Decision
Second Appeal dismissed. The order of the First Appellate Court refusing to condone delay is upheld.
Law Points
- Condonation of delay
- Sufficient cause
- Justice-oriented approach
- Limitation Act
- Section 5
Case Details
2014 LawText (BOM) (03) 130
Second Appeal No. 9 of 2014
Mr G. R. Sadar for appellants, Mr C. A. Babrekar for respondent no. 1
Baburao Mahadeorao Bhusari, Nilkanth Mahadeo Bhusari, Purushottam Mahadeo Bhusari
Nitin Gopalrao Pethe, Sachin Gopalrao Pethe, Manisha Gopalrao Pethe, Smt Indirabai Pundlikrao Bhusari, Ravindra Pundlikrao Bhusari, Rajendra Pundlikrao Bhusari, Sau Mahananda Raut
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Nature of Litigation
Second appeal against refusal to condone delay in filing first appeal in a partition suit.
Remedy Sought
Appellants sought condonation of delay in filing first appeal against trial court decree.
Filing Reason
Appellants were unsuccessful defendants in trial court and wanted to challenge the decree.
Previous Decisions
Trial Court decreed partition in RCS No. 69 of 2008 on 28.6.2011; First Appellate Court refused to condone delay in filing appeal.
Issues
Whether the First Appellate Court erred in refusing to condone delay.
Whether the Second Appeal lies against an order refusing condonation of delay.
Submissions/Arguments
Appellants argued that the First Appellate Court should have adopted a justice-oriented approach instead of dismissing on technical plea of delay.
Respondents argued that no sufficient cause was shown for the delay.
Ratio Decidendi
The First Appellate Court's discretion in refusing to condone delay cannot be interfered with in second appeal unless it is perverse or arbitrary. No substantial question of law arises.
Judgment Excerpts
The appellants herein are unsuccessful defendants no. 1 to 4 in the trial Court.
However, learned 1st appellate Judge refused to condone delay on the ground that sufficient cause was not made out.
Procedural History
Suit for partition filed in Civil Judge, JD, Warud (RCS No. 69/2008) decreed on 28.6.2011. Appellants filed first appeal with delay condonation application in District Court, Amravati, which was refused. Appellants then filed second appeal in Bombay High Court, Nagpur Bench.
Acts & Sections
- Limitation Act, 1963: Section 5
