Case Note & Summary
The case involves a civil revision application filed by the applicant (original decree-holder) challenging the order of the lower Appellate Court condoning the delay in filing the appeal by the respondent (original judgment-debtor). The respondent had filed an application for condonation of delay under Section 5 of the Limitation Act, 1963, giving two reasons: financial problems that prevented him from contacting his advocate, and that he resided in a remote area with no facility to contact his lawyer. The applicant filed a reply strongly denying these grounds and specifically stating that the respondent had appeared in the execution proceedings in September 2015, well before the appeal was filed in February 2016. The lower Appellate Court allowed the application, relying on the principle in Collector, Land Acquisition, Anantnag v. Ms. Katiji that the expression 'sufficient cause' should be liberally construed to advance substantial justice. The High Court found that the lower Appellate Court had not considered the applicant's reply and had mechanically applied the Katiji principle without examining whether the respondent had actually shown sufficient cause. The High Court held that the order was perverse and arbitrary, set it aside, and restored the appeal to the lower Appellate Court for fresh consideration on merits, directing the court to consider the reply and decide the application in accordance with law.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Section 5 of Limitation Act, 1963 - The lower Appellate Court allowed the application for condonation of delay based on the respondent's allegations of financial problems and remote residence without considering the applicant's rebuttal evidence that the respondent had appeared in execution proceedings before filing the appeal - Held that the order was perverse and arbitrary as it failed to consider the reply and was mechanical (Paras 4-8).
Issue of Consideration
Whether the impugned order condoning delay in filing appeal is perverse and arbitrary in law.
Final Decision
The High Court allowed the civil revision application, set aside the impugned order, and restored the appeal to the lower Appellate Court for fresh consideration of the application for condonation of delay, directing the court to consider the applicant's reply and decide the application in accordance with law.
Law Points
- Sufficient cause for condonation of delay must be established by evidence
- not mere allegations
- liberal approach does not dispense with need for plausible explanation
- order must consider rebuttal evidence and not be mechanical.
Case Details
2017 LawText (BOM) (08) 113
Civil Revision Application No.102 of 2017
Shri P.P. Kothari for the Applicant/Petitioner, Shri N.B. Kalwaghe for the Respondent
Pradeep s/o. Motiram Shende
Smt. Tejram s/o. Yadavrao Urade
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Nature of Litigation
Civil revision application against order condoning delay in filing appeal.
Remedy Sought
Applicant sought setting aside of the order condoning delay and dismissal of the application for condonation.
Filing Reason
The lower Appellate Court allowed the respondent's application for condonation of delay without properly considering the applicant's reply.
Previous Decisions
The lower Appellate Court allowed the application for condonation of delay on 29 August 2017.
Issues
Whether the impugned order condoning delay is perverse and arbitrary in law.
Submissions/Arguments
Applicant argued that the respondent's grounds for delay were false and that the respondent had appeared in execution proceedings before filing the appeal.
Respondent argued that he had financial problems and resided in a remote area, which prevented him from contacting his lawyer.
Ratio Decidendi
An order condoning delay must be based on a proper consideration of the evidence and rebuttal; mechanical application of the principle of liberal construction without examining the sufficiency of cause renders the order perverse and arbitrary.
Judgment Excerpts
The only question, this revision application raises is : Whether the impugned order is perverse and arbitrary in law ?
Upon hearing both sides and going through the paper book of this application including the impugned order, I am of the opinion that the answer to the question has to be given as in the affirmative.
In the application filed before the lower Appellate Court, the respondent had given only two reasons...
In the reply filed by the applicant, these grounds were strongly denied stating that they were not true.
The lower Appellate Court allowed the application giving reasons that the respondent did show sufficient cause...
While, there is no consideration of the reply filed by the applicant...
The lower Appellate Court has mechanically applied the principle of law laid down in the case of Katiji...
The impugned order is, therefore, perverse and arbitrary in law.
Procedural History
The respondent filed an appeal before the lower Appellate Court along with an application for condonation of delay under Section 5 of the Limitation Act. The applicant filed a reply opposing the application. The lower Appellate Court allowed the application for condonation of delay. The applicant filed the present civil revision application before the High Court challenging that order.
Acts & Sections
- Limitation Act, 1963: Section 5
