Having Regard To The Object Of The A&C Act, The Delay Of 435 Days In Filing An Appeal Is Too Long To Exercise Discretion: Telangana High Court

The Division Bench of Justice P. Naveen Rao dismissed an appeal that was filed after a long delay of 435 days on the ground that no sufficient reason is assigned for delay in filing appeal. It held that when the delay is long, a heavy burden is placed on the applicant to give cogent reasons to satisfy the court for condonation of delay.

The Court further held that the cause of action for filing an appeal arises on the date of impugned order and not when some adverse action is taken by the opposite party.

Facts

The parties entered into a Development Agreement whereby the respondent was to construct villas and create other infrastructure on the land owned by the appellants.

A dispute arose between the parties that was referred to the arbitral tribunal. A consent award was passed by the arbitrator. However, the dispute continued even after the passing of the award. Consequently, the appellant filed an application under Section 9 of the A&C Act to restrain the respondent from interfering with its possession of the subject lands.

The lower court on the application passed an order dated 12.07.2017 maintaining status quo in respect of the appellants possession. The order was to remain in force for a period of 90 days or till the filing of the enforcement petition whichever is earlier.

Thereafter, the appellant filed an application for the enforcement of the arbitral award. The respondent also filed for the enforcement of the award.

Next, the appellant field the appeal against the order dated 12,07.2017 on the ground that the respondent is interfering with the possession of the appellant, therefore, the order is required to be modified or clarified to restrain the respondents.

The Contention Of The Parties

The appellant filed the appeal on the following grounds:

• The respondent is disturbing the status quo granted by the lower court; therefore, the order of the lower court is required to be modified or clarified to restrain the respondent.
• There is no delay in filing of the present appeal as the cause of action for the same arose only when the respondent started interfering the peaceful possession of the appellant against the status quo granted by the lower court.
• A grave injustice would be caused to the appellant if the petition is not heard on merit as it would be dispossessed of the subject property pending the enforcement petition.

The respondent objected to the maintainability of the application on the following grounds:

• The appeal is filed after a long delay of 435 days, therefore, liable to be rejected in limine.
• There is no recognition of possession in favour of the appellants and by means of filing the application, they are trying to gain back possession, which is otherwise, vested in the respondent.
• The appellants are in wrongful possession of the subject property and the possession belongs to the respondents.
• The issue of possession cannot be decided by the Court in appeal.

Analysis By The Court

The Court held that the period of limitation for filing of the appeal under Section 37 of the A&C Act is 90 days and there is a delay of 435 days in filing of the appeal by the appellant.

The Court held that having regards to the object of the A&C Act, the delay of 435 days in filing an appeal is too long to exercise discretion.

The Court held that when the delay is long, a heavy burden is placed on the applicant to give cogent reasons to satisfy the court for condonation of delay and the appellant has failed to show any reason for delay in filing the appeal.

The Court observed that the impugned order granted status quo merely for a period of 90 days or till the filing of the enforcement petition whichever is earlier and the effect of the impugned order expired when the appellant filed for the enforcement.

The Court further held that the cause of action for filing an appeal arises on the date of impugned order and not when some adverse action is taken by the opposite party, therefore, if the appellants were not satisfied with the order of the trial court, it ought to have filed an appeal within 90 days from the date of the order.

The Court reiterated that condonation of delay is a discretionary exercise of power and an applicant cannot claim it as a matter of right.

Accordingly, the Court dismissed the petition.

Case Title: Naveen P Malvay v. Samskruthi Shelters, Civil Miscellaneous Appeal No. 32 of 2019.

Citation : 2022 LiveLaw (Tel) 52

Date: 21.06.2022

Counsel for the Applicant: Sri Unnam Muralidhar Rao

Counsel for the Respondent: Sri. M. Das Mahapatra

Click Here To Read/Download Order