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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2058 OF 2016
1) M/s. P.D.T. Trading Company
through its Partner
Shri Vishnu s/o Pandurang Talmale,
Aged about 47 years, Occ.- Business,
Off. At - Plot No.163, Small Factory
Area, Bagadganj, Nagpur - 440 008.
2) Shri Vishnu s/o Pandurang Talmale,
Aged about 47 years,
Occupation - Business.
3) Shri Praveen s/o Pandurang Talmale,
Aged about 44 years, Occ. - Business,
Both R/o Behind J.N. Tata Parsi Girls
High School, Ganjipeth, Nagpur. .... PETITIONERS
VERSUS
Shri Digant s/o Rajesh Shah,
Aged about 28 years, Occ. - Architect,
R/o Bhojraj Gopaldas, Nehru Putla Road,
Itwari, Nagpur - 440 002. .... RESPONDENT
______________________________________________________________
Shri S.R. Bhongade, Advocate for the petitioners,
Shri R.M. Sharma, Advocate for the respondent.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 28 JUNE, 2016.
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ORAL JUDGMENT :
1. Heard Shri S.R. Bhongade, Advocate for the petitioners and Shri R.M. Sharma, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
3. The petitioners-tenants filed appeal before the District Court challenging the judgment and decree passed by the trial Court.
As there was delay in filing the appeal, the petitioners had filed an application praying for condonation of delay. The District Court, by the order dated 21-11-2015, condoned the delay, however, on condition that the petitioners pay Rs.5,000/- to the respondent within fifteen days from the date of the order. The petitioners failed to pay Rs.5,000/- to the respondent within fifteen days and therefore, the petitioners filed an application seeking permission to deposit the amount of costs. This application is rejected by the impugned order.
4. The learned Advocate for the petitioners has submitted that the lapse on the part of the petitioners is because of the negligence of the clerk of the Advocate who represented the petitioners. It is submitted that the clerk had noted wrong date in the diary because of ::: Uploaded on - 11/07/2016 ::: Downloaded on - 30/07/2016 07:25:06 ::: 3 wp2058.16 which the Advocate representing the petitioners could not notice the order passed by the District Court. The learned Advocate for the petitioners has submitted that the respondent will not be prejudiced if the petitioners are permitted to pay the amount of costs and the appeal filed by the petitioners is registered and taken up for hearing.
5. The learned Advocate for the respondent has pointed out from the record that the petitioners have been negligent in defending the matter at every stage. It is submitted that the petitioners are not entitled for any discretionary order. It is further submitted that the learned District Judge has properly considered the matter and as the petitioners have failed to establish the reason put forth by them for seeking condonation of delay, the application is rightly rejected by the learned District Judge. It is prayed that the petition be dismissed with costs.
6. The decree is for possession. The respondent has not been able to show that the petitioners have gained anything by taking the risk of being non-suited for not complying the order passed by the District Court.
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7. Considering the facts of the case, in my view, the interests of justice would be sub-served by passing the following order :
(i) The impugned order is set aside.
(ii) The petitioners shall pay the amount of Rs.5,000/- as
directed by the District Court by the order dated 21-11-2015 to the respondent or deposit the amount before the District Court within one month.
(iii) In addition, the petitioners shall pay an amount of Rs.5,000/- to the respondent or deposit this amount also before the District Court within one month, towards the costs of this petition.
(iv) If the amount of Rs.10,000/- as directed above is paid within one month, the appeal filed by the petitioners before the District Court be registered and considered according to law. If the petitioners fail to deposit the amount within one month, the impugned order shall stand restored.
(v) The petition is disposed in the above terms.
JUDGE adgokar ::: Uploaded on - 11/07/2016 ::: Downloaded on - 30/07/2016 07:25:06 :::