CHANDU J AMBEKAR Vs. DIGAMBAR K KULKARNI

JUDGEMENT

(1.) THE Applicants had filed Regular Civil Suit No. 82 of 1984 in the Court of the learned Civil Judge, Junior Division at vaijapur for declaration of title and injunction. The said suit came to be dismissed in default on 6th November, 1993 and, therefore, an application for restoration came to be filed belatedly on 6th June, 1994 along with an application for condonation of delay which came to be listed as m. A. R. J. I. No. 12 of 1994. This application for condonation of delay in filing the restoration application came to be rejected by the Court below on 21st September, 1995 and the same order has been challenged in this revision which was admitted on 8th January, 1997 and stay to the proceedings continued all along.

(2.) ON 25th June, 2003 the learned Single Judge of this Court recorded his disagreement with the view earlier taken by another Single Bench in the case of Chandrakant v. M. K. Associates and, therefore, took a view that a revision application against rejection of an application for condonation of delay appear to be entertainable in view of the opening part of section 115 (1) of the Code of Civil Procedure (the Code, for short)subject to the limitations stated in the said order. The learned Single judge, therefore, framed the following issue for reference to a larger bench and after this revision application was placed before the Honourable

(3.) SHRI Patni, the learned counsel for the applicant and Shri. Gangapurwala, the learned amicus curiae submitted that the view taken by this court in the case of Chandrakant (Supra) deserve reconsideration and an order rejecting the application for condonation of delay filed in an appeal or a restoration application is an order of final nature and hence such an order can be challenged in a revision application under section 115 of the Code. Shri. Chapalgaonkar, learned counsel appearing for the respondents on the other hand supported the view taken by this Court in chandrakant's case (Supra) and submitted that the language of the amended section 115 of the Code is very specific and there is no ambiguity so as to doubt the view pronounced in Chandrakant's Case (supra ).