Full Judgment Text
[1]
2006:BHC-AS:19955
IN TH IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN TH
APPELLATE SIDE
WRIT PETITION NO.5890 OF 2006
WRIT PETITION NO.5890 OF 2006 WRIT PETITION NO.5890 OF 2006
Shri Waghjai Devi Endowment
Trust, Kusgaon, through the
President
1. Baban Balkrishna @ Krishna
Varkhade, age 51 years,
Occ: Agri. & Driver
2. Balkrishna @ Krishna Shankar
Varkhade, age 81 years,
Occ: Agri.
3. Dinkar Hari Vare,
age 56 years,
Occ: Agri.
4. Vishwas Balkrishna @
Krishna Varkhade, age 49
years, Occ: Agri.
5. Balkrishna Ramchandra
Vare, age 51 years,
Occ: Agri.
6. Maruti Bhiku Vare,
age 49 years
7. Ananda Bhiku Vare,
age 43 years
8. Rajaram Bhiku Vare,
age 40 years
9. Manoj Baban Varkhade,
age 23 years
10. Sanjay Balkrishna Vare,
age 22 years
11. Kashinath Bala Vare,
age 71 years
All residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Petitioners
- Versus -
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1. Sanjiv Kashinath Vare
2. Satish Sahdev Hagwane
3. Shamrao Ramchandra Ghadage
4. Anandrao Shankar Hagwane
5. Shivaji Sonaba Vare
6. Sadashiv Atmaram Vare
7. Kiran Ananda Bagade
All adults, Occ: Agri.,
all residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Respondents
WITH WITH WITH
WRIT PETITION NO.5887 OF 2006 WRIT PETITION NO.5887 OF 2006 WRIT PETITION NO.5887 OF 2006
Shri Bahir Dev Endowment
Trust, Kusgaon, through the
President
1. Maruti Bhiku Vare,
age 49 years,
Occ: Agri.
2. Ananda Bhiku Vare,
age 40 years,
Occ: Agri.
3. Rajaram Bhiku Vare,
age 40 years,
Occ: Agri.
All residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Petitioners
- Versus -
1. Sanjiv Kashinath Vare
2. Satish Sahdev Hagwane
3. Shamrao Ramchandra Ghadage
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[3]
4. Anandrao Shankar Hagwane
5. Shivaji Sonaba Vare
6. Sadashiv Atmaram Vare
7. Kiran Ananda Bagade
All adults, Occ: Agri.,
all residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Respondents
AND AND AND
WRIT PETITION NO.5891 OF 2006 WRIT PETITION NO.5891 OF 2006 WRIT PETITION NO.5891 OF 2006
Shri Waghjai Devi Endowment
Trust, Kusgaon, through the
President
1. Baban Balkrishna @ Krishna
Varkhade, age 51 years,
Occ: Agri. & Driver
2. Balkrishna @ Krishna Shankar
Varkhade, age 81 years,
Occ: Agri.
3. Dinkar Hari Vare,
age 56 years,
Occ: Agri.
4. Vishwas Balkrishna @
Krishna Varkhade, age 49
years, Occ: Agri.
5. Balkrishna Ramchandra
Vare, age 51 years,
Occ: Agri.
All residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Petitioners
- Versus -
1. Sanjiv Kashinath Vare
2. Satish Sahdev Hagwane
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[4]
3. Shamrao Ramchandra Ghadage
4. Anandrao Shankar Hagwane
5. Shivaji Sonaba Vare
6. Sadashiv Atmaram Vare
7. Kiran Ananda Bagade
All adults, Occ: Agri.,
all residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Respondents
Shri U.P. Warunjikar for the Petitioners
in all the Petitions.
Shri Dilip Bodke for the Respondents in
all the Petitions.
CORAM: CORAM: R.M.S. KHANDEPARKAR, J. CORAM:
DATED: DATED: OCTOBER 09, 2006 DATED:
ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT:
1. In these three petitions common questions of law and
facts arise and, therefore, they were heard together and
are being disposed of by this common Judgment.
2. Rule. By consent, rule made returnable forthwith.
3. In all these three petitions the petitioners
challenge the orders passed by the Appellate Authority
rejecting the applications for condonation of delay in
filing the appeals. In Writ Petition No.5890 of 2006,
there was a delay of 2 years and 10 months in filing the
appeal. In Writ Petition No.5887 of 2006, the delay was
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[5]
of 83 days in filing the appeal. In Writ Petition
No.5891 of 2006, the delay was of 3 months and 6 days in
filing the appeal.
4. In Writ Petition Nos.5890 and 5891 of 2006, the
petitioners had filed the applications for condonation
of delay on the ground that the applicant was employed
as a driver in Government service and he could not get
the necessary leave as also he had no knowledge about
the provisions of law and that, therefore, there was
delay as stated above in filing the appeals. In Writ
Petition No.5887 of 2006 the applicant has filed the
application for condonation of delay on the ground that
the applicant was suffering from asthma and had no
knowledge of law and, therefore, there was delay of 83
days in filing the appeal.
5. The contention of the petitioners in all these
petitions is that when the matters were fixed for
hearing of the applications for condonation of delay,
the respondents filed an application raising the issue
of non-maintainability of the appeal and the matters
thereafter were adjourned for hearing on the said
application raising the objection to the maintainability
of the appeals and the matters regarding the condonation
of delay were not heard. It is their case that after
hearing the application on the maintainability issue,
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[6]
the matter was fixed for orders but the learned
Appellate Authority instead of deciding the said
application regarding the objection to the
maintainability of the appeal, proceeded to decide the
issue relating to delay in filing the appeals when in
fact the matters were not heard in that regard. The
contention on behalf of the petitioners is disputed and
denied by the respondents.
6. In the course of hearing of the matters, the learned
Advocate for the petitioners submitted that the roznama
of the proceedings before the lower Appellate Authority
clearly reveals that from 10-3-2006 the matters
proceeded with respect to the application raising
objection regarding the maintainability of the appeals
till the date of passing of the orders. The roznama
nowhere discloses that the matters were heard in
relation to the applications for condonation of delay.
He further submitted that the applicants ought to have
been given opportunity to lead evidence in support of
their applications for condonation of delay. The lower
Appellate Court failed to give any such opportunity to
the petitioners. According to him, even on this day the
petitioners are ready and willing to lead evidence to
justify the delay in filing the appeals. Pursuant to
the query by the Court as to whether the petitioners
have filed any affidavit before the lower Appellate
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[7]
Court bringing to the notice of the said Court that the
matters were merely heard on the point of
non-maintainability of the appeals and not on the point
of condonation of delay, the learned Advocate submitted
that the petitioners are ready and prepared to file the
affidavit of the Advocates who had appeared in the
matter on behalf of the petitioners to establish the
fact that the matter was heard only on the issue of
non-maintainability of the appeals and not relating to
condonation of delay.
7. The learned Advocate appearing on behalf of the
respondents, on the other hand, submitted that the
matters were heard also on the point of condonation of
delay and accordingly the impugned orders have been
passed. He also submitted that the Advocates have not
filed any affidavit in support of the allegation on
behalf of the petitioners that the matter was heard only
on the point of non-maintainability of the appeals and
not relating to the applications for condonation of
delay.
8. It is well-settled law that in case the parties want
to raise any dispute regarding the factual aspect of the
proceedings before the Court below or regarding any
event in the Court below in respect of which the party
wants to contradict the observation in that regard in
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the order of the Court below, then it is necessary for
the concerned party to file an affidavit in that regard
before the concerned Court. If the petitioners want to
dispute the fact about the hearing of the applications
for condonation of delay and to insist that the matter
was heard only in relation to the application regarding
the maintainability of the appeals, in spite of the fact
that the impugned orders apparently disclose the parties
having been heard on the issue of the delay in filing
the appeal, it was necessary for the petitioners to file
affidavits in that regard before the lower Appellate
Authority. Undisputedly, till this date no such
affidavit has been filed by the petitioners in any of
the said proceedings before the lower Appellate
Authority.
9. In case there is any doubt about the recording of
any fact in the Judgment, it is necessary to seek
appropriate clarification from the Court which has
passed the Judgment. The Apex Court in Chitra Kumari Chitra Kumari Chitra Kumari
(Smt.) v. Union of India and others, (Smt.) v. Union of India and others, reported in (2001) (Smt.) v. Union of India and others,
3 SCC 208, while holding that the higher Court should go
by what has been recorded in the Judgment regarding the
happenings in the Court, clearly ruled that "It is
settled law that one has to proceed on the basis of what
has been recorded by the court. If any party feels
aggrieved by what has been recorded by the courts a
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[9]
clarification has to be sought from that same court."
Undisputedly, the petitioners have not moved for any
clarification from the lower Appellate Court till this
day.
10. The impugned orders apparently disclose the parties
having been heard on the point on which the impugned
orders have been passed and the Court having perused the
records before dismissing the applications for
condonation of delay. It is true that the copy of the
roznama produced before me discloses that when the
matters were taken up for hearing on 10-3-2006, there
was an application filed by the respondents who were the
tenants before the lower Appellate Authority raising the
issue regarding the non-maintainability of the appeals.
The same was recorded as Exhibit-20. It is also true
that the subsequent entries disclose the matters having
been fixed for the say of the applicants on the said
issue and further it was adjourned for arguments.
However, it is pertinent to note that the roznama dated
21-2-2006 clearly discloses that the matter was
adjourned to 10-3-2006 for hearing on Exhibit-1 i.e.
the application for condonation of delay. The roznama
undoubtedly, nowhere discloses that the matter was in
fact being heard on the said application on 10-3-2006.
Nevertheless it is an elementary thing to know that when
the appeal is filed before any Appellate Court or
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[10]
Authority beyond the period of limitation specified for
filing of the appeal under the provisions of law, the
Appellate Court or Authority cannot proceed to deal with
the matter on merits unless the appellant is able to
satisfy that the delay in filing the appeal was for
sufficient cause. Question of the Appellate Court or
Authority going into the merits, including the issue
regarding the maintainability or non-maintainability of
the appeal, can arise only when the Appellate Court or
Authority can have occasion to look into those issues in
the appeal. Occasion to look into those issues can
arise in case the appeal is filed within the period of
limitation. Otherwise, the appellant has to satisfy the
Appellate Court or Authority about the sufficiency of
the cause for delay in filing the appeal and only after
being satisfied about the cause for the delay and the
same having been accordingly condoned, the Appellate
Court or Authority can apply its mind to the issue
regarding the maintainability or non-maintainability of
appeal.
11. Being so, as the roznama clearly discloses that on
21-2-2006 the matter was adjourned for hearing of the
application for condonation of delay, merely because on
the next date the respondents chose to file an
application raising the issue regarding the
non-maintainability of the appeal and the roznama
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further refers to the opportunity to the petitioners
about the filing of the reply to the same and further
that the matters were adjourned for arguments, that
would not be sufficient to construe that the lower
Appellate Authority had not heard the applications for
condonation of delay; more so when the impugned orders
disclose opportunity having been granted to the
petitioners of being heard on the said issue. Added to
this, there is no affidavit filed by the petitioners
before the lower Appellate Authority disputing the fact
that they were not given the opportunity of being heard
in the matter before passing orders on the applications
for condonation of delay. In the circumstances,
therefore, merely because the roznama is cryptic or is
not happily written giving all the details, that itself
will not supersede the specific findings of the
Appellate Authority in the impugned orders and it will
have to be held that the petitioners were given enough
opportunity of being heard on the issue regarding the
condonation of delay. Roznama cannot supersede or
supplant the finding in the Judgment. And assuming
there is any discrepancy between the finding in the
Judgment and the recording of roznama, obviously the
former has to prevail, unless the concerned Court itself
clarifies the things to be otherwise for the reasons to
be disclosed in such clarification.
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[12]
12. While dealing with the issue as regards the cause
for the delay in filing the appeal beyond the period of
limitation, the learned Advocate for the petitioners
drew my attention to the applications filed by the
petitioners before the lower Appellate Authority in that
regard and submitted that in two of the cases the
applicant being employed in Government service, could
not get leave and therefore there was delay whereas in
the third case the applicant was suffering from asthma
and, therefore, he could not file the appeal in time.
In the case of the Government employee, the delay in one
matter was of more than two years and in the second
matter the delay was of more than three months, whereas
in the third matter, wherein the applicant was allegedly
suffering from asthma, the delay was of 83 days.
13. It is an undisputed fact that apart from bald
statement of the petitioners in their applications for
condonation of delay regarding the alleged cause for
delay, the petitioners had not produced any evidence in
support of the applications for condonation of delay.
The contention on behalf of the petitioners, however, is
that no such opportunity was given to the petitioners in
that regard. There is nothing on record to show that
the applicants had prayed for any leave of the lower
Appellate Court to lead evidence in support of their
applications either in the applications themselves or at
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any time after the filing of the applications. Needless
to say that in case of delay in filing the appeal, the
appellant has to produce evidence in support of the
application along with the application itself. Question
of giving further opportunity to produce evidence can
arise only in cases where the applicant/appellant
specifically makes a prayer in that regard before the
concerned Appellate Court or Authority. In the case in
hand, there was no such prayer made by the petitioners.
14. In fact, Order 41, Rule 3-A of the C.P.C. clearly
provides that when the appeal is presented after expiry
of the period of limitation specified therefor, it shall
be accompanied by an application supported by an
affidavit setting forth the facts on which the appellant
relies to satisfy the Court that he had sufficient cause
for not preferring the appeal within such period.
Needless to say that such affidavit should be
accompanied by the copies of the necessary documentary
evidence, if the party desires to rely upon any such
documentary evidence.
15. It is further contention on behalf of the
petitioners that the petitioners can produce evidence
even today if opportunity is given to the petitioners.
Question of allowing the party to lead evidence in the
writ proceedings under Article 227 of the Constitution
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[14]
does not arise at all. In any case, It is too late for
the petitioners to expect the Court to grant any such
opportunity to the petitioners. It would virtually
amount to give an opportunity to fill-up the lacunae in
the evidence. Since it was the contention of the
petitioners that the applicant could not get leave for
being in Government service, it was necessary for the
petitioners to disclose whether the applicant had in
fact made attempt to obtain the leave and such
application for leave was rejected. It was necessary
for the petitioners to disclose all the details in that
regard in the application itself and duly supported by
affidavit and documentary evidence. There is no
presumption that a person employed in Government service
cannot get leave to attend the Court matters.
Undisputedly, neither efforts were made by the
petitioners before the lower Appellate Court nor even
any material in that regard has been produced along with
the petitions before this Court. It is too late for the
petitioners to insist for further opportunity in that
regard.
16. As regards the third petitioner complaining about
suffering from asthma, the petitioners, admittedly, had
not produced any medical evidence in support of the said
contention on behalf of the petitioners. Besides, the
application before the lower Appellate Authority did not
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[15]
disclose the period during which the applicant was
suffering from asthma, if at all he was in fact
suffering from any such health problem. The petitioners
have also not disclosed whether the applicant was under
treatment of any doctor in that regard. All these facts
were necessarily required to be disclosed in the
application itself duly supported by the affidavit and
the copies of the necessary documentary evidence.
Neither such facts were disclosed in the application nor
even in the petition. Neither documentary evidence in
that regard was produced before the lower Appellate
Authority nor along with the petition.
17. For the reasons stated above, therefore, it is
apparent that the contention about non-hearing of the
applications for condonation of delay which has been
raised solely on the basis of cryptic recording of the
roznama is purely an after-thought. The contention
lacks bona fide and, therefore, there is no case for
interference in the impugned orders nor they justify
interference in exercise of writ jurisdiction under
Article 227 of the Constitution. On merits no
sufficient cause was shown for condonation of delay, and
the lower Appellate Court was perfectly justified in
refusing to exercise its discretion in favour of the
petitioners. Delay cannot be condoned as a matter of
course. The appellant approaching the appellate
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[16]
authority beyond the period of limitation prescribed for
filing of the appeal has to establish sufficient cause
for the same to the satisfaction of the appellate
authority and such authority has to exercise its
discretion judiciously, without ignoring the fact that
such delay give rise to valuable right in favour of the
opposite party and it cannot be taken away without
proper justification.
18. In the facts and circumstances of the case,
therefore, it cannot be said that the Courts below have
acted illegally or have committed any jurisdictional
error while passing the impugned orders. Even on merits
there is no justification for interference in the
impugned orders. In the result, therefore, the
petitions are liable to be dismissed and accordingly are
dismissed. The rule is discharged with no order as to
costs.
(R.M.S. Khandeparkar, J.)
sjs/109wpg5890.6 sjs/109wpg5890.6 sjs/109wpg5890.6
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2006:BHC-AS:19955
IN TH IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN TH
APPELLATE SIDE
WRIT PETITION NO.5890 OF 2006
WRIT PETITION NO.5890 OF 2006 WRIT PETITION NO.5890 OF 2006
Shri Waghjai Devi Endowment
Trust, Kusgaon, through the
President
1. Baban Balkrishna @ Krishna
Varkhade, age 51 years,
Occ: Agri. & Driver
2. Balkrishna @ Krishna Shankar
Varkhade, age 81 years,
Occ: Agri.
3. Dinkar Hari Vare,
age 56 years,
Occ: Agri.
4. Vishwas Balkrishna @
Krishna Varkhade, age 49
years, Occ: Agri.
5. Balkrishna Ramchandra
Vare, age 51 years,
Occ: Agri.
6. Maruti Bhiku Vare,
age 49 years
7. Ananda Bhiku Vare,
age 43 years
8. Rajaram Bhiku Vare,
age 40 years
9. Manoj Baban Varkhade,
age 23 years
10. Sanjay Balkrishna Vare,
age 22 years
11. Kashinath Bala Vare,
age 71 years
All residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Petitioners
- Versus -
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[2]
1. Sanjiv Kashinath Vare
2. Satish Sahdev Hagwane
3. Shamrao Ramchandra Ghadage
4. Anandrao Shankar Hagwane
5. Shivaji Sonaba Vare
6. Sadashiv Atmaram Vare
7. Kiran Ananda Bagade
All adults, Occ: Agri.,
all residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Respondents
WITH WITH WITH
WRIT PETITION NO.5887 OF 2006 WRIT PETITION NO.5887 OF 2006 WRIT PETITION NO.5887 OF 2006
Shri Bahir Dev Endowment
Trust, Kusgaon, through the
President
1. Maruti Bhiku Vare,
age 49 years,
Occ: Agri.
2. Ananda Bhiku Vare,
age 40 years,
Occ: Agri.
3. Rajaram Bhiku Vare,
age 40 years,
Occ: Agri.
All residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Petitioners
- Versus -
1. Sanjiv Kashinath Vare
2. Satish Sahdev Hagwane
3. Shamrao Ramchandra Ghadage
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[3]
4. Anandrao Shankar Hagwane
5. Shivaji Sonaba Vare
6. Sadashiv Atmaram Vare
7. Kiran Ananda Bagade
All adults, Occ: Agri.,
all residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Respondents
AND AND AND
WRIT PETITION NO.5891 OF 2006 WRIT PETITION NO.5891 OF 2006 WRIT PETITION NO.5891 OF 2006
Shri Waghjai Devi Endowment
Trust, Kusgaon, through the
President
1. Baban Balkrishna @ Krishna
Varkhade, age 51 years,
Occ: Agri. & Driver
2. Balkrishna @ Krishna Shankar
Varkhade, age 81 years,
Occ: Agri.
3. Dinkar Hari Vare,
age 56 years,
Occ: Agri.
4. Vishwas Balkrishna @
Krishna Varkhade, age 49
years, Occ: Agri.
5. Balkrishna Ramchandra
Vare, age 51 years,
Occ: Agri.
All residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Petitioners
- Versus -
1. Sanjiv Kashinath Vare
2. Satish Sahdev Hagwane
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[4]
3. Shamrao Ramchandra Ghadage
4. Anandrao Shankar Hagwane
5. Shivaji Sonaba Vare
6. Sadashiv Atmaram Vare
7. Kiran Ananda Bagade
All adults, Occ: Agri.,
all residing at and Post
Kusgaon, Taluka Wai,
District: Satara. .... Respondents
Shri U.P. Warunjikar for the Petitioners
in all the Petitions.
Shri Dilip Bodke for the Respondents in
all the Petitions.
CORAM: CORAM: R.M.S. KHANDEPARKAR, J. CORAM:
DATED: DATED: OCTOBER 09, 2006 DATED:
ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT:
1. In these three petitions common questions of law and
facts arise and, therefore, they were heard together and
are being disposed of by this common Judgment.
2. Rule. By consent, rule made returnable forthwith.
3. In all these three petitions the petitioners
challenge the orders passed by the Appellate Authority
rejecting the applications for condonation of delay in
filing the appeals. In Writ Petition No.5890 of 2006,
there was a delay of 2 years and 10 months in filing the
appeal. In Writ Petition No.5887 of 2006, the delay was
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[5]
of 83 days in filing the appeal. In Writ Petition
No.5891 of 2006, the delay was of 3 months and 6 days in
filing the appeal.
4. In Writ Petition Nos.5890 and 5891 of 2006, the
petitioners had filed the applications for condonation
of delay on the ground that the applicant was employed
as a driver in Government service and he could not get
the necessary leave as also he had no knowledge about
the provisions of law and that, therefore, there was
delay as stated above in filing the appeals. In Writ
Petition No.5887 of 2006 the applicant has filed the
application for condonation of delay on the ground that
the applicant was suffering from asthma and had no
knowledge of law and, therefore, there was delay of 83
days in filing the appeal.
5. The contention of the petitioners in all these
petitions is that when the matters were fixed for
hearing of the applications for condonation of delay,
the respondents filed an application raising the issue
of non-maintainability of the appeal and the matters
thereafter were adjourned for hearing on the said
application raising the objection to the maintainability
of the appeals and the matters regarding the condonation
of delay were not heard. It is their case that after
hearing the application on the maintainability issue,
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[6]
the matter was fixed for orders but the learned
Appellate Authority instead of deciding the said
application regarding the objection to the
maintainability of the appeal, proceeded to decide the
issue relating to delay in filing the appeals when in
fact the matters were not heard in that regard. The
contention on behalf of the petitioners is disputed and
denied by the respondents.
6. In the course of hearing of the matters, the learned
Advocate for the petitioners submitted that the roznama
of the proceedings before the lower Appellate Authority
clearly reveals that from 10-3-2006 the matters
proceeded with respect to the application raising
objection regarding the maintainability of the appeals
till the date of passing of the orders. The roznama
nowhere discloses that the matters were heard in
relation to the applications for condonation of delay.
He further submitted that the applicants ought to have
been given opportunity to lead evidence in support of
their applications for condonation of delay. The lower
Appellate Court failed to give any such opportunity to
the petitioners. According to him, even on this day the
petitioners are ready and willing to lead evidence to
justify the delay in filing the appeals. Pursuant to
the query by the Court as to whether the petitioners
have filed any affidavit before the lower Appellate
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[7]
Court bringing to the notice of the said Court that the
matters were merely heard on the point of
non-maintainability of the appeals and not on the point
of condonation of delay, the learned Advocate submitted
that the petitioners are ready and prepared to file the
affidavit of the Advocates who had appeared in the
matter on behalf of the petitioners to establish the
fact that the matter was heard only on the issue of
non-maintainability of the appeals and not relating to
condonation of delay.
7. The learned Advocate appearing on behalf of the
respondents, on the other hand, submitted that the
matters were heard also on the point of condonation of
delay and accordingly the impugned orders have been
passed. He also submitted that the Advocates have not
filed any affidavit in support of the allegation on
behalf of the petitioners that the matter was heard only
on the point of non-maintainability of the appeals and
not relating to the applications for condonation of
delay.
8. It is well-settled law that in case the parties want
to raise any dispute regarding the factual aspect of the
proceedings before the Court below or regarding any
event in the Court below in respect of which the party
wants to contradict the observation in that regard in
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[8]
the order of the Court below, then it is necessary for
the concerned party to file an affidavit in that regard
before the concerned Court. If the petitioners want to
dispute the fact about the hearing of the applications
for condonation of delay and to insist that the matter
was heard only in relation to the application regarding
the maintainability of the appeals, in spite of the fact
that the impugned orders apparently disclose the parties
having been heard on the issue of the delay in filing
the appeal, it was necessary for the petitioners to file
affidavits in that regard before the lower Appellate
Authority. Undisputedly, till this date no such
affidavit has been filed by the petitioners in any of
the said proceedings before the lower Appellate
Authority.
9. In case there is any doubt about the recording of
any fact in the Judgment, it is necessary to seek
appropriate clarification from the Court which has
passed the Judgment. The Apex Court in Chitra Kumari Chitra Kumari Chitra Kumari
(Smt.) v. Union of India and others, (Smt.) v. Union of India and others, reported in (2001) (Smt.) v. Union of India and others,
3 SCC 208, while holding that the higher Court should go
by what has been recorded in the Judgment regarding the
happenings in the Court, clearly ruled that "It is
settled law that one has to proceed on the basis of what
has been recorded by the court. If any party feels
aggrieved by what has been recorded by the courts a
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[9]
clarification has to be sought from that same court."
Undisputedly, the petitioners have not moved for any
clarification from the lower Appellate Court till this
day.
10. The impugned orders apparently disclose the parties
having been heard on the point on which the impugned
orders have been passed and the Court having perused the
records before dismissing the applications for
condonation of delay. It is true that the copy of the
roznama produced before me discloses that when the
matters were taken up for hearing on 10-3-2006, there
was an application filed by the respondents who were the
tenants before the lower Appellate Authority raising the
issue regarding the non-maintainability of the appeals.
The same was recorded as Exhibit-20. It is also true
that the subsequent entries disclose the matters having
been fixed for the say of the applicants on the said
issue and further it was adjourned for arguments.
However, it is pertinent to note that the roznama dated
21-2-2006 clearly discloses that the matter was
adjourned to 10-3-2006 for hearing on Exhibit-1 i.e.
the application for condonation of delay. The roznama
undoubtedly, nowhere discloses that the matter was in
fact being heard on the said application on 10-3-2006.
Nevertheless it is an elementary thing to know that when
the appeal is filed before any Appellate Court or
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[10]
Authority beyond the period of limitation specified for
filing of the appeal under the provisions of law, the
Appellate Court or Authority cannot proceed to deal with
the matter on merits unless the appellant is able to
satisfy that the delay in filing the appeal was for
sufficient cause. Question of the Appellate Court or
Authority going into the merits, including the issue
regarding the maintainability or non-maintainability of
the appeal, can arise only when the Appellate Court or
Authority can have occasion to look into those issues in
the appeal. Occasion to look into those issues can
arise in case the appeal is filed within the period of
limitation. Otherwise, the appellant has to satisfy the
Appellate Court or Authority about the sufficiency of
the cause for delay in filing the appeal and only after
being satisfied about the cause for the delay and the
same having been accordingly condoned, the Appellate
Court or Authority can apply its mind to the issue
regarding the maintainability or non-maintainability of
appeal.
11. Being so, as the roznama clearly discloses that on
21-2-2006 the matter was adjourned for hearing of the
application for condonation of delay, merely because on
the next date the respondents chose to file an
application raising the issue regarding the
non-maintainability of the appeal and the roznama
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[11]
further refers to the opportunity to the petitioners
about the filing of the reply to the same and further
that the matters were adjourned for arguments, that
would not be sufficient to construe that the lower
Appellate Authority had not heard the applications for
condonation of delay; more so when the impugned orders
disclose opportunity having been granted to the
petitioners of being heard on the said issue. Added to
this, there is no affidavit filed by the petitioners
before the lower Appellate Authority disputing the fact
that they were not given the opportunity of being heard
in the matter before passing orders on the applications
for condonation of delay. In the circumstances,
therefore, merely because the roznama is cryptic or is
not happily written giving all the details, that itself
will not supersede the specific findings of the
Appellate Authority in the impugned orders and it will
have to be held that the petitioners were given enough
opportunity of being heard on the issue regarding the
condonation of delay. Roznama cannot supersede or
supplant the finding in the Judgment. And assuming
there is any discrepancy between the finding in the
Judgment and the recording of roznama, obviously the
former has to prevail, unless the concerned Court itself
clarifies the things to be otherwise for the reasons to
be disclosed in such clarification.
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[12]
12. While dealing with the issue as regards the cause
for the delay in filing the appeal beyond the period of
limitation, the learned Advocate for the petitioners
drew my attention to the applications filed by the
petitioners before the lower Appellate Authority in that
regard and submitted that in two of the cases the
applicant being employed in Government service, could
not get leave and therefore there was delay whereas in
the third case the applicant was suffering from asthma
and, therefore, he could not file the appeal in time.
In the case of the Government employee, the delay in one
matter was of more than two years and in the second
matter the delay was of more than three months, whereas
in the third matter, wherein the applicant was allegedly
suffering from asthma, the delay was of 83 days.
13. It is an undisputed fact that apart from bald
statement of the petitioners in their applications for
condonation of delay regarding the alleged cause for
delay, the petitioners had not produced any evidence in
support of the applications for condonation of delay.
The contention on behalf of the petitioners, however, is
that no such opportunity was given to the petitioners in
that regard. There is nothing on record to show that
the applicants had prayed for any leave of the lower
Appellate Court to lead evidence in support of their
applications either in the applications themselves or at
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[13]
any time after the filing of the applications. Needless
to say that in case of delay in filing the appeal, the
appellant has to produce evidence in support of the
application along with the application itself. Question
of giving further opportunity to produce evidence can
arise only in cases where the applicant/appellant
specifically makes a prayer in that regard before the
concerned Appellate Court or Authority. In the case in
hand, there was no such prayer made by the petitioners.
14. In fact, Order 41, Rule 3-A of the C.P.C. clearly
provides that when the appeal is presented after expiry
of the period of limitation specified therefor, it shall
be accompanied by an application supported by an
affidavit setting forth the facts on which the appellant
relies to satisfy the Court that he had sufficient cause
for not preferring the appeal within such period.
Needless to say that such affidavit should be
accompanied by the copies of the necessary documentary
evidence, if the party desires to rely upon any such
documentary evidence.
15. It is further contention on behalf of the
petitioners that the petitioners can produce evidence
even today if opportunity is given to the petitioners.
Question of allowing the party to lead evidence in the
writ proceedings under Article 227 of the Constitution
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[14]
does not arise at all. In any case, It is too late for
the petitioners to expect the Court to grant any such
opportunity to the petitioners. It would virtually
amount to give an opportunity to fill-up the lacunae in
the evidence. Since it was the contention of the
petitioners that the applicant could not get leave for
being in Government service, it was necessary for the
petitioners to disclose whether the applicant had in
fact made attempt to obtain the leave and such
application for leave was rejected. It was necessary
for the petitioners to disclose all the details in that
regard in the application itself and duly supported by
affidavit and documentary evidence. There is no
presumption that a person employed in Government service
cannot get leave to attend the Court matters.
Undisputedly, neither efforts were made by the
petitioners before the lower Appellate Court nor even
any material in that regard has been produced along with
the petitions before this Court. It is too late for the
petitioners to insist for further opportunity in that
regard.
16. As regards the third petitioner complaining about
suffering from asthma, the petitioners, admittedly, had
not produced any medical evidence in support of the said
contention on behalf of the petitioners. Besides, the
application before the lower Appellate Authority did not
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[15]
disclose the period during which the applicant was
suffering from asthma, if at all he was in fact
suffering from any such health problem. The petitioners
have also not disclosed whether the applicant was under
treatment of any doctor in that regard. All these facts
were necessarily required to be disclosed in the
application itself duly supported by the affidavit and
the copies of the necessary documentary evidence.
Neither such facts were disclosed in the application nor
even in the petition. Neither documentary evidence in
that regard was produced before the lower Appellate
Authority nor along with the petition.
17. For the reasons stated above, therefore, it is
apparent that the contention about non-hearing of the
applications for condonation of delay which has been
raised solely on the basis of cryptic recording of the
roznama is purely an after-thought. The contention
lacks bona fide and, therefore, there is no case for
interference in the impugned orders nor they justify
interference in exercise of writ jurisdiction under
Article 227 of the Constitution. On merits no
sufficient cause was shown for condonation of delay, and
the lower Appellate Court was perfectly justified in
refusing to exercise its discretion in favour of the
petitioners. Delay cannot be condoned as a matter of
course. The appellant approaching the appellate
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[16]
authority beyond the period of limitation prescribed for
filing of the appeal has to establish sufficient cause
for the same to the satisfaction of the appellate
authority and such authority has to exercise its
discretion judiciously, without ignoring the fact that
such delay give rise to valuable right in favour of the
opposite party and it cannot be taken away without
proper justification.
18. In the facts and circumstances of the case,
therefore, it cannot be said that the Courts below have
acted illegally or have committed any jurisdictional
error while passing the impugned orders. Even on merits
there is no justification for interference in the
impugned orders. In the result, therefore, the
petitions are liable to be dismissed and accordingly are
dismissed. The rule is discharged with no order as to
costs.
(R.M.S. Khandeparkar, J.)
sjs/109wpg5890.6 sjs/109wpg5890.6 sjs/109wpg5890.6
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