Case Note & Summary
The applicants (original objectors) filed a Civil Revision Application challenging an order dated 13.01.2016 passed by the lower appellate court in Misc. Civil Application No. 19 of 2016. The lower appellate court had condoned the delay in filing an appeal under Section 26A of the Provincial Small Cause Courts Act against an order of the trial court rejecting the applicants' objection to an application under Section 12A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. The High Court noted that it was undisputed that an appeal under Section 26A of the Provincial Small Cause Courts Act is not maintainable against an order rejecting an objection under Section 12A of the Maharashtra Ownership Flats Act. Relying on the decision in Pundalik Haribhau Chandekar v. Jagdish Dadaji Bind, 2010 (3) Mh.L.J. 292, the Court held that once the appeal is not maintainable and the court has no jurisdiction, the question of condoning the delay does not arise. Consequently, the revision application was allowed, and the impugned order was quashed and set aside.
Headnote
A) Civil Procedure - Maintainability of Appeal - Section 26A Provincial Small Cause Courts Act, 1887 - Section 12A Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - The Court held that an appeal under Section 26A of the Provincial Small Cause Courts Act is not maintainable against an order rejecting an objection filed to an application under Section 12A of the Maharashtra Ownership Flats Act, 1963. Once the appeal is not maintainable and the court lacks jurisdiction, the question of condoning the delay does not arise. The decision in Pundalik Haribhau Chandekar v. Jagdish Dadaji Bind, 2010 (3) Mh.L.J. 292, was followed. (Paras 3-4)
Issue of Consideration
Whether an appeal under Section 26A of the Provincial Small Cause Courts Act is maintainable against an order rejecting an objection filed to an application under Section 12A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, and consequently whether the lower appellate court had jurisdiction to condone delay in filing such an appeal.
Final Decision
The Civil Revision Application is allowed. The order dated 13.01.2016 passed by the Lower Appellate Court in Misc. Civil Application No. 19 of 2016 is quashed and set aside.
Law Points
- Appeal under Section 26A of Provincial Small Cause Courts Act is not maintainable against an order rejecting objection under Section 12A of Maharashtra Ownership Flats Act
- 1963
- Once appeal is not maintainable
- question of condonation of delay does not arise
Case Details
2016 LawText (BOM) (08) 191
Civil Revision Application No. 27 of 2016
Shri B.N.Mohta for applicants, Shri S.B.Dhande for Nonapplicant No.1
Vivek Gajanan Palandurkar, Smt. Nutan w/o. Vivek Palandurkar, Kishor Yadavrao Shirpurkar, Smt. Chetna Kishor Shirpurkar
The Vidarbha Premier Cooperative Housing Society Limited, Dr. Rahul Ramesh Kshirsagar, Smt. Ruchira Rahul Kshirsagar
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil Revision Application challenging an order condoning delay in filing an appeal under Section 26A of the Provincial Small Cause Courts Act.
Remedy Sought
The applicants sought to set aside the order dated 13.01.2016 passed by the lower appellate court condoning the delay in filing the appeal.
Filing Reason
The lower appellate court condoned the delay in filing an appeal under Section 26A of the Provincial Small Cause Courts Act against an order rejecting an objection under Section 12A of the Maharashtra Ownership Flats Act, 1963.
Previous Decisions
The trial court had rejected the objection filed to the application under Section 12A of the Maharashtra Ownership Flats Act. The appeal against that order was filed with delay, and the lower appellate court condoned the delay.
Issues
Whether an appeal under Section 26A of the Provincial Small Cause Courts Act is maintainable against an order rejecting an objection under Section 12A of the Maharashtra Ownership Flats Act, 1963.
Whether the lower appellate court had jurisdiction to condone delay in filing such an appeal.
Submissions/Arguments
The applicants argued that the appeal under Section 26A of the Provincial Small Cause Courts Act is not maintainable against an order rejecting an objection under Section 12A of the Maharashtra Ownership Flats Act, 1963, and therefore the question of condonation of delay does not arise.
Ratio Decidendi
An appeal under Section 26A of the Provincial Small Cause Courts Act is not maintainable against an order rejecting an objection under Section 12A of the Maharashtra Ownership Flats Act, 1963. Once the appeal is not maintainable and the court lacks jurisdiction, the question of condoning the delay does not arise.
Judgment Excerpts
Once it is found that the appeal is not maintainable and the Court has no jurisdiction, the question of condoning the delay caused therein does not at all arise.
The point is no longer res integra in view of the decision of this Court in the case of Pundalik Haribhau Chandekar vrs. Jagdish Dadaji Bind, reported in 2010 (3) Mh.L.J. 292.
Procedural History
The trial court rejected the objection filed to an application under Section 12A of the Maharashtra Ownership Flats Act, 1963. The non-applicants filed an appeal under Section 26A of the Provincial Small Cause Courts Act with delay. The lower appellate court condoned the delay by order dated 13.01.2016 in Misc. Civil Application No. 19 of 2016. The applicants filed the present Civil Revision Application challenging that order.
Acts & Sections
- Provincial Small Cause Courts Act, 1887: Section 26A
- Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963: Section 12A
