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Judgment
Heard Shri P.P. Kothari, learned counsel for the applicant and Shri N.B. Kalwaghe, learned counsel for the respondent finally by consent.
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, namely, i) there were financial problems faced by the respondent which disabled him from contacting his advocate, and ii) he resided in remote area where there were no possibility and no facility to contact his lawyer on phone; still the respondent somehow or the other, got the knowledge of the judgment and order, against which he intended to file an appeal.
In the reply filed by the applicant, these grounds were strongly denied stating that they were not true. It was also submitted in a specific manner that the appeal was filed in February 2016 and whereas, the respondent had appeared in the execution proceeding filed to enforce the decree well before filing of the appeal. It was also attempted to be informed to the lower Appellate Court through this reply that the respondent had appeared before the executing Court in the month of September 2015.
In this backdrop, the lower Appellate Court allowed the application giving reasons that the respondent did show sufficient cause for condoning the delay and that the expression "sufficient cause" employed by the Legislature, as held in the case of Collector, Land Acquisition, Anantnag and others vs. Ms. Katiji and others, reported in (1987) 2 SCC 107 was adequately elastic to enable the Court to apply law in a meaningful manner so as to subserve the ends of justice. The lower Appellate Court also reasoned that in a present case like this, a liberal approach was required to be adopted and that the Court must do everything to shun hyper technical approach.
While, there can be no dispute about the principles of law stated in the case of Collector, Land Acquisition, Anantnag and others (supra), the application of these principles in a present case like this could not have been there, for the reason that basically, some cause in order that it is interpreted as a sufficient cause has to be shown by the seeker of the discretion of the Court to condone the delay occurred in filing of an appeal. The Court has also to take a precaution that no falsehood is put forward as a reason for condoning the delay. The Court has also to be conscious of the fact that the party concerned acted all the while with some or due diligence and did not allow rights the decree conferred upon other side to settle. In the instant case, as stated earlier, there were only two reasons, one of financial problem and the other of the residence of the respondent in a "remote area" devoid of adequate facilities and proper possibilities to contact Advocate on phone. Curiously enough, the respondent did not file an appeal, as rightly submitted by the learned counsel for the appellant, in the capacity as a pauper nor did he seek his declaration to be an indigent person. The respondent also did not explain his status in life. He only submitted that he was professing a private occupation. Obviously, the respondent does not proclaim himself to be a labourer and declares himself to a person, who pursues some private occupation. What kind of that private occupation is, one does not know, as the respondent maintains a complete silence on this aspect of the matter. Then, Ramtek is one of the oldest tahsil places of Nagpur and has a substantial population, which by any estimate, runs into lacks and not in thousands. One need not say anything or make any comment about such a residential place, being claimed to be a remote area and not an urban area, having no communication facilities. So, the explanation given by the appellant in the application itself did not show any cause and, therefore, there could not have been any occasion for the lower Appellate Court to embark upon an inquiry to find out if it was a sufficient cause or otherwise.
Coming to the aspect of bona fides or malafides, the lower Appellate Court, I must say, has not dealt with it in any manner. The delay condonation application is silent about the appearance of the respondent in September 2015 before the executing Court. Without any dispute, the delay condonation application has been filed in February 2016 along with a memo of appeal. The reply filed by the applicant pointed out the fact of appearance of the respondent in September 2015 before the executing Court. The respondent on his part, also did not say before that Court anything about such an averment in the reply. Now, I must say, there remains no dispute about respondent''s appearance in September 2015 before executing Court. In these circumstance, there was a duty in the respondent to have mentioned in his application his appearance before the executing Court in September 2015 and also give his explanation for his not filing the appeal immediately after September 2015. But, he did not discharge it. The Lower Appellate Court ignored these fundamental aspects of the issue involved in this case. The issue is about acting in a bona fide manner. Can one say, on the backdrop of the silence maintained by the respondent, that the respondent acted in a bona fide way ? One need not give any express answer to the question as the facts discussed earlier amply provide it. It is obvious that there was also absence of bona fides on the part of the respondent.
In the result, I find that the impugned order is perverse and arbitrary in law. It cannot be sustained in law.
The civil revision application is allowed.
The impugned order is quashed and set aside. As a consequence, the delay condonation application stands rejected. No costs.