Bombay High Court
Yuvraj Vithu Sutar vs Dinkar Lahu Sutar on 15 November, 2011
Bench: R. M. Savant
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mmj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6271 of 2010
Yuvraj Vithu Sutar .. Petitioner
Versus
Dinkar Lahu Sutar .. Respondent
WITH
WRIT PETITION NO.4088 OF 2011
Dinkar Lahu Sutar ..Petitioner
Versus
Bajirao Vithu Sutar & Ors. ig ..Respondents
Mr. Amit Borkar Advocate for the Petitioner in Writ Petition No.6271 of
2010
Mr. S.S.Patwardhan for the Petitioner in Writ Petition No.4088 of 2011
and for the Respondent in Writ Petition No.6271 of 2010
CORAM : R.M.SAVANT, J.
DATE : 15th NOVEMBER, 2011
ORAL JUDGMENT :
1 Rule in both the Petitions, with the consent of the parties made
returnable forthwith and heard.
2 By the above Petitions, two orders are taken exception to. In so far
as Writ Petition No.6271 of 2010 is concerned, the order challenged is
dated 8-12-2009 passed by the Learned Ad-hoc District Judge-I, Kolhapur,
by which order, the Application filed by the Respondent herein i.e. the
Petitioner in the companion Petition for condonation of delay of 39 days
in filing the Appeal against the decree dated 26-3-2009, came to be
allowed subject to payment of costs of Rs.1500/-.
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3 In so far as, the Writ Petition No.4088 of 2011 is concerned, the
same takes exception to the Order dated 26-10-2009 passed by the same
Learned Ad-hoc District Judge-I, Kolhapur, by which Order the application
Exhibit-10 for condonation of delay of about 6 days filed by the Petitioner
in bringing the heirs on record came to be rejected.
4 In so far as, the first Petition is concerned, the principal ground on
which, the impugned order has been challenged is that the First Appellate
Court has erred in condoning the delay in filing the Appeal which has
abated in view of the fact that the Plaintiff No.1 is dead and his heirs were
not brought on record and the Application Exhibit 10 filed by the
Respondent herein for condonation of delay in bringing the heirs on
record has been rejected. It is the case of the Petitioner that the decree
being one and indivisible, the Appeal would not survive in view of the
abatement qua the Plaintiff No.1.
5 In the light of the said submissions, the decision in Writ Petition No.
4088 of 2011 would therefore, have a material bearing on the challenge
in Writ Petition No.6271 of 2010, in my view, it would be appropriate to
consider the said Writ Petition at the first instance.
6 As indicated above, the said Writ Petition has been filed impugning
the Order dated 26-10-2009 passed by the Learned Ad-hoc District Judge-
I, Kolhapur, by which Order, the Application Exhibit-10 for condonation of
delay of 6 days came to be rejected. The reasons given by the Petitioner in
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the said Writ Petition for seeking condonation of delay, as can be seen,
from the Order, did not commend acceptance of the Learned District
Judge. The Learned District Judge was of the view that the case made out
by the Petitioner in the said Writ Petition cannot be accepted when the
Petitioner was living in the adjoining house of the Respondent No.1.
6 It is trite that in matters of condonation of delay, a highly pedantic
approach should be eschewed and an approach which furthers the cause
of substantial justice should be adopted. It is also trite that the party
should be allowed to prosecute its remedy on merits rather than being
thrown out on technicalities. In my view, in the facts and circumstances of
the case, the Learned Ad-hoc District Judge-I, Kolhapur has taken a highly
technical view of the matter in rejecting the application for condonation
of delay of 6 days.
7 It is sought to be contended on behalf of the Respondent by the
Learned Counsel Mr. Borkar that the Petitioner has acquiesced in the said
Order dated 26-10-2009 on account of his subsequent conduct. It is the
submission of Mr. Borkar that after the application for condonation of
delay in filing the Appeal was allowed by the Learned District Judge by his
Order dated 8-12-2009, the Respondent in the above Petition had filed a
Review Application against the said Order. In response to the review
application, the Petitioner in the above Petition had taken a stand that the
proceedings have not abated. The review application accordingly came to
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be dismissed on 23-4-2010 after which, the Respondent i.e. the Petitioner
in the companion Petition No.6271 of 2010 filed the said Petition
challenging the Order dated 8-12-2009 as also the Order dated 5-1-2010.
Notice came to be issued in the said Petition on 14-7-2010 and it is only
after a period of three months thereafter that the instant Petition being
No.4088 of 2011 came to be filed. The Learned Counsel taking support of
the said factual events would contend that the said events show the
acquiesced of the Petitioner in the said Order dated 8-12-2009.
Per contra, it is submitted by the Learned Counsel appearing for the
Petitioner Shri Patwardhan that the events as disclosed by the Learned
Counsel for the Respondent do not make a case of acquiescence, as it was
always open to the Petitioner to challenge the said Order dated
26-10-2009 and merely because the above Writ Petition has been filed
after Writ Petition No.6271 of 2010, it cannot be said that the Petitioner
has acquiesced in the said Order dated 26-10-2009. In my view, to bring
home the ground of acquiescence a strong case has to be made out as it
results in non suiting a party, merely because the instant Petition was filed
after the said Writ Petition No.6271 of 2010, it cannot lead to an inference
that the Petitioner has acquiesced in the said Order dated 26-10-2009.
The fact that the Petitioner had taken a stand in the Review Petition filed
by the Respondent that the proceedings have not abated would also not
lead to an inference that he has acquiesced in the said Order. The said
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stand might have been taken in the context of the pleadings in the Review
Petition.
8 In my view, therefore, the case of acquiescence as sought to be
made out by the Learned Counsel for the Respondent cannot be accepted.
In that view of the matter and for the reasons mentioned herein above,
the above Writ Petition No.4088 of 2011 is required to be allowed.
Resultantly, the impugned order dated 26-10-2009 is quashed and set
aside. The delay of 6 days in bringing the heirs of the original Plaintiff No.
1 i.e Respondent No.1 to the Appeal stands condoned. The heirs
accordingly to be brought on record. The Petitioner would be entitled to
amend the cause title of the Appeal accordingly.
9 Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
10 In view of the fact that Writ petition No.4088 of 2011 has been
allowed as above, the challenge, if any, to the Order dated 8-12-2009
condoning the delay on the ground that the Appeal has abated does not
survive, the Petition is accordingly disposed of as having become
infructuous. Rule to stand discharged accordingly in the said Petition.
11 In the facts and circumstances of the case, the hearing of the Appeal
filed by the Petitioner in Writ Petition No.4088 of 2011 is expedited.
(R.M.SAVANT, J.)
