Chandrakant Dattu Mhatre & Ors. v. Nandkumar Moreshwar Patil & Ors.

(l) an order under Rule 10 of Order XXII giving or refusing to give leave;

(n) an order under Rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (na) an order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person; (p) orders in interpleader-suit under Rule 3, Rule 4 or Rule 6 of Order XXXV; (q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII; (r) an order under Rule 1, Rule 2,Rule 2-A, Rule 4 or Rule 10 of Order XXXIX; 4 of 10 (s) an order under Rule 1 or Rule 4 of Order XL; (t) an order of refusal under Rule 19 of Order XLI to readmit, or under Rule 21 of Order XLI to rehear, an appeal; (u) an order under Rule 23 or Rule 23-A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; (w) an order under Rule 4 of Order XLVII granting an application for review. 1-A: Right to challenge non-appealable orders in appeal against decrees— (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.”

17. Dismissal of appeal for appellant'' default:- (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (2) Hearing appeal ex parte. - Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."

19. Re-admission of appeal dismissed for default.- Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

8. Mr. Gole would submit that under O. XLI, R. 19 of the CPC, where an Appeal is dismissed under Rule 11, Sub-rule(2) or Rule 17, the Appellant may apply to the Appellate Court for readmission of the Appeal and in that regard when read with the provisions of O. XLIII, 5 of 10 Rule 1(t), the Appellant would be required to file Appeal from order only. He would therefore submit that the Writ Petition filed by the Petitioners be returned and Petitioners be directed by this Court to file appropriate Appeal from Order to challenge the judgment dated 21.07.2015.

9. On the basis of the aforesaid provisions, I see reason and substance in the submissions advanced by Mr. Gole. This would necessarily entail a third round of proceedings filed by the Petitioners over a period of 12 years, only because they are guided so. He would support his aforesaid submissions by referring to following two decisions of this Court:-

(i) Chandrakant Govind Sutar Vs. M.K. Associates & Anr.1;

(ii) Maurice Cilanova Domingos Baptista Pinto Antonio

Baptista Pinto (deceased) & Ors. Vs. Ashley Developers Pvt. Ltd.[2]

10. He would draw my attention to paragraph No. 5 in the decision in the case of Chandrakant G. Sutar (first supra) and would contend that in view of the decision of the Supreme Court reported in AIR 1982 SC 1397 in the case of Rani Choudhary Vs. Lt. Col. Suraj Jit Choudhury, our Court has held that the order passed on an Application for condonation of delay in filing Appeal is to be construed as one passed in the Appeal itself and therefore by the same analogy, 1 2003(1) Mh.L.J. 1011

6 of 10 in the present case the judgment dated 21.07.2015 ought to be considered as an order passed in Appeal and not in the Misc. Application. Similar is the proposition in the case of Maurice Cilanova (second supra) There is one fundamental question that arises for consideration when the aforementioned proposition laid down by our Court is read by me. It is seen that in the present case, Suit stands dismissed by judgment dated 28.07.2003 whereas the Appeal also stands dismissed though in default by order dated 14.10.2011. Due to this, the Registry has opined that Appeal from Order would not lieu as the order impugned is not any interlocutory order, either passed in the Suit or the Appeal. I agree with the same. Mr. Gole while making his submissions may be right that the judgment dated 21.07.2015 be considered as an interlocutory order and therefore Petitioners should be relegated to the remedy of filing Appeal from Order but this Petition is filed under Article 227 of the Constitution of India concerning the supervisory jurisdiction of this Court and the Court needs to therefore do substantive justice. In the present case, it is seen that Petitioners / Appellants have in the past filed two proceedings in the interregnum and without any order have withdrawn the same. Those proceedings are delineated herein above. What is seen by this Court is that substantial time has already been lost and spent by the Petitioners / Appellants. All that time has been spent merely for 7 of 10 seeking condonation of delay which resultantly has stretched to more than 10 years. Court of law is required to do substantial justice, the delay of two years and two months deserves to be condoned in the above facts and observations made by me. Power of superintendence under Article 227 of the Constitution of India of this Court is extremely wide and also ingrains the attributes of Article 226 to do substantive justice. The delay is in respect of filing the Misc. Application seeking restoration of the dismissed Appeal. That Misc. Application for restoration is yet to be heard on merits. Appeal being a substantive right of the party, if denied would completely non-suit the party. I refrain myself from delineating any submissions on the merits of the matter though during the course of submissions, Mr. Gole has but advanced a few submissions thereon. I do not consider them necessary at all since for a decision on the issue before me.

11. The jurisdiction under Article 227 of the Constitution of India is neither Original nor Appellate, but is for both administrative and judicial superintendence. Exercise of its jurisdiction under Article 227 is entirely discretionary at the instance of the Court and can be exercised by the Court even suo motu. In exercise of supervisory jurisdiction under Article 227, the High Court may not only quash or set aside the impugned judgment and order, but it may also make such directions as the facts and circumstances of the case may warrant, may 8 of 10 be by way of guiding the inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court and in an appropriate case, the High Court while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision as the inferior Court or Tribunal should have made. The power under Article 227 enables the High Courts to exercise issuance of further directions which may not be available in the proceedings under Article 226 of the Constitution of India.

12. In the facts and circumstances of the present case, I am of the opinion that this Court in a Writ Petition under Article 227, Court can pass the order determining the issue raised by the Petitioners / Appellants seeking permission and leave of this Court for condonation of delay and more specifically so in the peculiar and specific facts of the present case which are delineated herein above. The timeline enumerated above speaks for itself and relegating the Petitioners to once again withdraw the present Writ Petition and file a fresh proceedings i.e. Appeal from Order as contended by Mr. Gole would not be in the interest of justice only because it will also lead to substantial delay that has already happened. However allowing the Writ Petition by condoning the delay of two years and two months, and that too in the facts of the present case cannot be unconditional. 9 of 10 Petitioners as seen above have protracted the matter, but one thing needs to be understood that no person or litigant will repeatedly approach the Court of law time and again and withdraw the proceedings unless the said litigant is guided by the Advocate. In that view of the matter and in the interest of justice, the judgment dated 21.07.2015 is quashed and set aside. The Application filed below Exh. 41 seeking condonation of delay of two years and two months is allowed in the facts and circumstances of the present case. The said delay of 2 years and 2 months is condoned in the interest of justice subject to Petitioners paying costs of Rs. 25000/- to the Respondents which in my opinion is an adequate compensatory relief to balance the convenience of both the parties. Once the costs are paid to the Respondents, the learned Trial Court shall ascertain the same and hear Misc. Application No. 28/2014 for restoration of Appeal strictly on its own merits without being influenced by any of the observations and findings returned by the learned Appellate Court in the judgment dated 21.07.2015 as also this order. It is clarified that all contentions of both the parties are expressly kept open.

13. Writ Petition is allowed and disposed in the above terms. Amberkar [ MILIND N. JADHAV, J. ]