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Basawwa Vs. Limbawwa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Appln. No. 1339 of 1967
Judge
Reported inAIR1968Bom309; (1968)70BOMLR50; 1968MhLJ298
ActsCode of Civil Procedure (CPC), 1908 - Sections 107 and 149
AppellantBasawwa
RespondentLimbawwa
Advocates:N.S. Shrikhande, Adv.
Excerpt:
.....and not wait until the office examines the papers and notifies the defects. if there is delay or laches in removing the objections the court is not bound to condone the delay. - - though the affidavit has been sworn on july 18, 1966 the next day after the filing of the appeal it is filed on october 24, 1966. i fail to understand why even the application for condonation of delay in filing of the appeal is not filed along with the appeal. negligence of the party, his counsel or his clerk can be no good reason for exercise of court's discretion in favour of the erring party. but the petitioner being poor agriculturist could not arrange to send necessary amount and hence the amount of court-fee of rs. with all this a solemn statement is made by the appellant's son-in-law that the..........more deplorable in cases where stay or injunction is obtained on admission of an appeal subject to office objections. it gives an advantage to the appellant and his lethargy pays dividends. surely, this state of affairs can hardly be tolerated.(5) experience has shown that the burden of seeing that requirement of the law is complied with, is thrown by the litigants and the gentlemen at the bar on the clerical staff of the office. it is the office that must point out whether the appeal is filed after the period of limitation or not. if it is filed beyond time, then in a leisurely manner an application for condonation of delay in filing the appeal is filed. if there are defects in the filing, then they have to be pointed out and they are removed one after the other. even though we are.....
Judgment:

(1) This is a second appeal. It was filed on June 17, 1966. Objections were notified on Aug, 17, 1966. Two of the objections were that appeal was beyond time by seven days and the appeal was not properly stamped.

(2) The application for condonation of delay in the filing of the appeal was filed on October 24, 1966, two months after it was notified. But none of the objections in the second appeal were removed. The Registrar, therefore, refused registration on November 18, 1966. Then on 78th day an application was filed saying that objections were removed and the appeal be registered, being application No. 910/1966. But even then the required court fee on the appeal was not paid. The office re-examined this matter and pointed out that court-fee was not paid. But the said application, curiously enough, it was not stated that the court-fee was not paid and that time be granted for payment of court-fees. Though financial difficulty of the appellant was stated to be the cause for non-removal of objections, in the said application, affidavit was not filed along with the application.

(3) Additional Court-fees were paid on June 26, 1967 with an application that the delay be condoned. This application being application No. 1339 is made on June 28, 1967.

(4) Such matters are not by any means unusual. The appellate side rules of the High Court lay down in what manner an appeal or application is to be filed making detailed provisions. The rules which permit incomplete filing are intended for meeting unforeseen contingencies. Instead, they are used as privileges. Almost every matter is filed incomplete in that (a) it is filed on eight annas stamp even where fixed stamp is payable, (b) care is not taken in correcting memo, very often sentences are left incomplete and do not make sense. (c) the names of the parties are not correctly shown, (d) the memo and/ or the Vakalatnama are not signed. (e) proper accompaniments are not filed, and (f) the claim is not stated, and so on. Even after the defects are pointed for long time nothing is done. The litigants and the Advocates apparently also think that they are privileged to remove one objection at a time and the result is the office has to examine the same matter over and over again. These 'privileges' are exercised so far that there are hardly any appeals filed complete as required by law. As large number of appeals have to be examined over and over again, even initial examination of the matter is held up for months. It is also noticed that almost every appeal takes eight to nine months to get ready for issuing of notices. Moreover, civil applications which are filed for condoning delays are again incomplete and they start the chain of examinations. The state of affairs is more deplorable in cases where stay or injunction is obtained on admission of an appeal subject to office objections. It gives an advantage to the appellant and his lethargy pays dividends. Surely, this state of affairs can hardly be tolerated.

(5) Experience has shown that the burden of seeing that requirement of the law is complied with, is thrown by the litigants and the Gentlemen at the bar on the clerical staff of the office. It is the office that must point out whether the appeal is filed after the period of limitation or not. If it is filed beyond time, then in a leisurely manner an application for condonation of delay in filing the appeal is filed. If there are defects in the filing, then they have to be pointed out and they are removed one after the other. Even though we are living in a period where there are only rights and privileges but no obligations, this state of affairs cannot be permitted.

(6) This case illustrates what I have said above. The application for condonation of the delay has not even been numbered because the objections in the appeal have not been removed. I have examined the application for the condonation of delay and I find that it is not dated and does not bear the signature of the Advocate. Though the affidavit has been sworn on July 18, 1966 the next day after the filing of the appeal it is filed on October 24, 1966. I fail to understand why even the application for condonation of delay in filing of the appeal is not filed along with the appeal. In this connection , I may refer to Krishnaswami Pandikondar v. Ramswami Chettiar 45 Ind App 25 = AIR 1917 PC 179 where Sir Lawrence Jenkins for the Judicial Committee says (P. 28); 'It is the duty of a litigant to know the last day on which he can present his appeal, and if through delay on his part it becomes necessary for him to ask the court to exercise in his favour the power contained in section 5 of the Indian Limitation Act, the burden rests upon him of adducing distinct proof of the sufficient cause on which he relies'. Why the said application was not presented along with the appeal is not known.

(7) It is the duty of the Advocate to know the provisions of law applicable in the case. When a client comes to him or he receives the papers he ought to see whether the appeal or application is in time, calculate the value for the appeal, and calculate the court-fees necessary, see whether all accompaniments are brought or sent, and, then do what is needful. He must inform the client immediately about what is wanting and not wait until the office examines the papers and notifies the defects. If there is delay or laches in removing the objections the Court is not bound to condone the delay. In respect of the payment of court-fees, section 149 of the Civil Procedure Code, which read with section 107 of the Code, gives discretion to the Court to permit making up the deficit in the court fees on the memorandum. This discretion has to be exercised judicially and not automatically merely for the asking. Negligence of the party, his counsel or his clerk can be no good reason for exercise of court's discretion in favour of the erring party.

(8) I have carefully examined the matter and I have come to the conclusion that this is not a proper case for the exercise of my discretion to condone the delay. The application No. 133 of 1967 for condoning the delay in the payment of the Court fees does not refer to what happened prior to April 24, 1967 on which day the learned Judge granted the earlier application subject to payments of the Court-fee on April 25. The statement is 'accordingly the court-fee was to be paid the next day. But the petitioner being poor agriculturist could not arrange to send necessary amount and hence the amount of Court-fee of Rs. 69/- remained unpaid'.

(9) The appellant-defendant No. 1 and the plaintiff are the widow of one Dada Patil. He also left daughters defendants 2 and 3 born through deft No. 1. The plaintiff claimed 1/6th share in the property of her husband. Defendant No. 1 was and is holding all the properties of Dadu which comprised of 30 lands in Nagaj, 5 lands in Rayawadi, Miraj Taluka, 5 houses and some suit sites. Movable property consists of 5 bullocks, one Kisan oil engine, two bullock-carts one buffalo and six cows. With all this a solemn statement is made by the appellant's son-in-law that the appellant is poor and she could not raise Rs. 69/-. I have no doubt that the statement is not true and cannot be believed. I am, having regard to the manner the whole matter has proceeded, of the opinion, that this is a clear case of negligence and no cause is made out for condonation of delay.

(10) Order accordingly.


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