BISHAN PAWAR Vs. DAYAWANTI

JUDGEMENT

(1.) Against judgment of the first Appellate court dismissing appeal, the petitioner preferred second appeal before this Court. This Court vide order dated 1.8.2007 observed that the second appeal was not maintainable as it did not lie however, at the request of the appellant this second appeal was treated as Civil Miscellaneous (Main).

(2.) The petitioner/appellate did not amend the memorandum of appeal and CM(M) is in the form of second appeal however the only ground pressed by the petitioner for allowing this CM(M) is that the learned first Appellate Court wrongly dismissed the first appeal of the petitioner on the ground of limitation. It is submitted that the appeal was filed within the period of limitation however, it was not accompanied by a certified copy of the judgment of trial Court and an exemption application was made seeking exemption from filing certified copy of the judgment as the same had been applied for and would be filed as and when obtained. The certified copy was not filed for about five months period and it was filed later on along with an application under Section 5 of the Limitation Act and the trial Court dismissed this application for condoning delay in filing certified copy.

(3.) I have perused the record of the trial Court as well as first Appellate Court. A perusal of record would show that at every stage, the petitioner had been delaying the proceedings deliberately and several times costs were imposed on the petitioner/defendant at the trial stage for different reasons viz. for not filing WS, for not appearing for admission/denial, for not producing the documents and for taking adjournments. Ultimately the issues were framed and when the case was at the stage of evidence again on behalf of defendant adjournment was sought on the ground of non availability of Counsel and on various other grounds. The suit was for recovery of around Rs.1 lac odd amount and it continued from 2000 till 2006 mainly because of the dilatory tactics of the defendant. After the suit was decreed, petitioner filed this appeal without certified copy and filed an exemption application stating that he had applied for certified copy but the same was not ready and he shall file the same as and when delivered to him. On the date, he filed this exemption application he had not bothered to check if the certified copy was ready or not. The record shows that the certified copy was applied on 19th July, 2006 and it was ready on 22nd July, 2006. The appeal was filed on 25th July, 2006 thus the appellant had not bothered to check whether certified copy was ready or not, and filed an exemption application with a false affidavit. Certified copy was not collected from the Copying Agency by the appellant till December, 2007. This is despite the fact that the respondent had taken a plea before the first Appellate Court that the appeal was no appeal in the eyes of law since it was not accompanied by the certified copy of the judgment. The appellant had also made an application under Order 41 Rule 27 CPC for additional evidence which he later on withdrew. The appellant filed an application under Section 151 CPC for filing certified copy sometime in January 2007 and the learned first Appellate Court after considering the contentions of both the sides passed the impugned order.