Bombay High Court
Vasant Vithal Gawand vs Shantaram Tukaram Gawand (Decd) ... on 28 October, 2015
Bench: R.M. Savant
WP-9929-15.doc 28.10.2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9929 OF 2015
1. Vasant Vithal Gawand, ]
Age: 63 years, Occupation Agriculture, ]
Residing at Mandwa, Post Dhokawade, ].. Petitioner
Taluka Alibag, District Raigad. ](Org. Plaintiff)
Versus
1. Shantaram Tukaram Gawand,
ig ]
(since deceased by his LR's) ]
1A. Prakash Shantaram Gawand, ]
Age: 55 years, Occupation Service, ]
R/at: Zirad, Taluka Alibag, Dist: Raigad. ]
1B. Dayanand Shantaram Gawand, ]
Age: 50 years, Occupation Business, ]
R/at: Mandwa, Post Dhokawade, ]
Taluka Alibag, Dist: Raigad. ]
1C. Rajendra Shantaram Gawand, ]
Age: 46 years, Occupation Business, ]
R/at: Parur, Zhakdevi Temple, ]
Taluka Alibag, Dist: Raigad. ]
1D. Surendra Shantaram Gawand, ]
Age: 43 years, Occupation Business, ]
R/at: Zirad, Post Zirad, ]
BGP. 1 of 13
::: Uploaded on - 30/10/2015 ::: Downloaded on - 30/10/2015 23:59:51 :::
WP-9929-15.doc 28.10.2015
Taluka Alibag, Dist: Raigad. ]
2. Yatin Amrutlal Patel, ]
Age 49 years, Occ: Agri/Business, ]
Residing at 104/A, Miramar 3, ].. Respondents
Nepean Sea Road, Mumbai 400 036. (Org. Deft Nos.1A to 1D
& Deft No.2)
Mr. C. G. Gavnekar a/w Mr. A. C. Gavnekar, for the Petitioner.
Ms. Gauri Godse i/by Mr. R. D. Joshi, for the Respondent No.2.
ig CORAM : R.M. SAVANT, J.
DATE : 28th OCTOBER, 2015
ORAL JUDGMENT
1. At the outset, the Learned Counsel for the Petitioner seeks
deletion of the Respondent Nos.1A to 1D as in the context of the challenge
raised in the above Petition they are formal parties. The said Respondents
are accordingly allowed to be deleted at the risk of the Petitioner.
2. The Writ Jurisdiction of this Court is invoked against the
order dated 28.07.2015 passed by the Learned District Judge-2, Raigad-
Alibag, by which order the Civil Misc. Application No.150 of 2014 came to
be allowed and resultantly, the delay of 1 year and 2 months in filing the
Appeal came to be condoned albeit on the payment of costs of Rs.15,000/-
to the Respondent No.1.
BGP. 2 of 13
WP-9929-15.doc 28.10.2015
3. The facts necessary to be cited for the adjudication of the
above Petition can in brief be stated thus. The suit in question being
Special Civil Suit No.156 of 2010 was filed by the Plaintiff i.e. the
Petitioner herein for declaration, injunction and possession. The subject
matter of the suit were agricultural lands bearing Survey No.70, Hissa
No.3, admeasuring 64 Ares, Survey No.71, Hissa No.1, admeasuring 18.7
Ares and Survey No.72, Hissa No.21, admeasuring 03 Ares situated at
village Dhokavade, Taluka Alibag, District Raigad. It seems that on the
application of the consolidation scheme the said lands were renumbered
and are now numbered as Gat No.499, Hissa No.1, admeasuring 72.4
Ares, Gat No.499, Hissa No.2, admeasuring 17 Ares and Gat No.499 Hissa
No.3, admeasuring 03 Ares. It is not necessary to dilate further on the
aspect as to who was cultivating the lands etc. Suffice it would be to state
that the Defendant No.2 i.e. Respondent No.2 herein purchased the said
lands from the Defendant No.1 pending the suit vide two Sale Deeds dated
21.05.2004 and 08.04.2005. It is on the basis of the said Sale Deeds that
the Defendant No.2 applied for his impleadment in the suit which
application filed by him came to be allowed and he accordingly came to be
impleaded as the Defendant No.2 to the suit, this was sometime in the
year 2010. Significantly, though the Defendant No.2 applied for his
impleadment in the suit, he did not file his Written Statement thereafter.
BGP. 3 of 13
WP-9929-15.doc 28.10.2015
The suit proceeded to trial and ultimately came to be decreed by the Trial
Court by judgment and order dated 20.09.2013. It is long thereafter i.e.
on 20.11.2014, the Defendant No.2 ventured to file an Appeal against the
said decree. In view of the fact that there was a delay of 1 year and 2
months, the Defendant No.2 filed the instant application being Civil Misc.
Application No.150 of 2014 for condonation of delay. The reason for delay,
if any can be found in paragraph 5 of the said Civil Misc. Application. The
said paragraph 5 is reproduced hereinunder for the sake of ready
reference :-
"5. Present Appellant was added in the suit during
pendency of suit. He appeared through advocate. However,
his advocate did not give proper advice for filing written
statement and even after appearance his advocate did not
inform the dates and also failed to give proper guidance, in
order to protect his rights. Consequently, suit proceeded
without W.S. Advocate of the Appellate who appeared in
the Trial Court did not inform decision of suit also."
4. A reading of the said paragraph therefore discloses that it is
the case of the Defendant No.2 that the advocate whom he had engaged
did not give him proper advice for filing the Written Statement and even
after he filed his appearance he did not inform the dates and also did not
inform him the decision in the suit.
5. The Petitioner herein i.e. original Plaintiff filed his reply to the
said application. The case sought to be made out vide the averments made
BGP. 4 of 13
WP-9929-15.doc 28.10.2015
in paragraph 5 was sought to be questioned. It was the case of the Plaintiff
that the Defendant No.2 i.e. the Appellant was knowing the decision of the
suit right from the date of the decision. It was further the case of the
Plaintiff that the Defendant No.2 has not explained as to how he got
knowledge of the decision of the suit. The Plaintiff also sought to deal
with the merits of the case of the Defendant No.2 i.e. Appellant in the
Appeal.
6.
The Lower Appellate Court considered the said Civil Misc.
Application No.150 of 2014 and as indicated above has by the impugned
order dated 28.07.2015 allowed the application. The Lower Appellate
Court has referred to various judgments which have been relied upon by
the Learned Counsel for the parties on the aspect of condonation of delay.
The Lower Appellate Court thereafter in paragraph 24 has adverted to the
fact that the Defendant No.2 has purchased the property from the
Defendant No.1 pending the suit and that it is after the said purchase he
was added as party to the suit. The Lower Appellate Court thereafter
seems to have gone by the averments in the application and observed that
there seems to be collusion between the L.Rs of the Defendant No.1 and
the Plaintiff and therefore matter was not properly prosecuted before the
Trial Court and the suit was decreed. The Lower Appellate Court has also
adverted to the averment in the application as regards the fact that the
BGP. 5 of 13
WP-9929-15.doc 28.10.2015
information of the decision in the suit was not given to the Appellant by
his advocate within time and therefore there is delay which has been
caused and that after the information was given by one Yogesh Gawand
that he immediately applied for certified copy and filed the application.
The Lower Appellate Court has appreciated the fact that it is not the
extent of delay, but the reasons given therefor which is the defining aspect.
The Lower Appellate Court after observing so has recorded that the delay
has been properly explained. The Lower Appellate Court also sought to lay
emphasis on the fact that though the Appellant had sought to examine the
advocate who was appearing for him in the Trial Court however in spite of
summons being issued he did not appear, observed that every litigant may
not have the capacity to complain against his advocate. The Lower
Appellate Court with a view to balance the equities has imposed costs of
Rs.15,000/- on the Appellant, whilst condoning the delay of 1 year and 2
months (wrongly referred as 2 years in the order). As indicated above, it is
the said order dated 28.07.2015 which is taken exception to by way of the
above Petition.
7. The Learned Counsel for the Petitioner Mr. C. G. Gavnekar
would contend that the Lower Appellate Court has condoned the delay
without adhering to the well settled principles which are applicable to the
consideration of an application for condonation of delay. The Learned
BGP. 6 of 13
WP-9929-15.doc 28.10.2015
Counsel sought to place reliance on the judgment of the Apex Court
reported in (2013) 14 SCC 81 in the matter of Basawaraj and another
Vs. Special Land Acquisition Officer, wherein the Apex Court has
observed that the discretion to condone delay has to be exercised
judiciously based on facts and circumstances of each case. The Apex Court
has further observed that sufficient cause cannot be liberally interpreted if
negligence, inaction or lack of bona fides is attributed to the party. The
Apex Court has further observed that if party acted with negligence, lack
of bona fides or inaction then there cannot be any justified ground for
condoning the delay. It was the submission of Mr. C. G. Gavnekar that the
reasons put forth by the Appellant vide averments made in paragraph 5
which are sought to be supported by the evidence of the Appellant himself
and his witness Yogesh Gawand, cannot be said to constitute sufficient
cause having regard to the fact that the Appellant i.e. original Defendant
No.2 is a resident of Mumbai and that he has property also in village Awas
in Alibag, District Raigad. It was therefore the submission of Mr. C. G.
Gavnekar that the Lower Appellate Court has without considering the
aforesaid aspects has condoned the delay and thereby has exercised
discretion when the same was not warranted.
8. Per contra, the Learned Counsel for the Respondent No.2
herein i.e. Appellant Ms. Gauri Godse would support the impugned order.
BGP. 7 of 13
WP-9929-15.doc 28.10.2015
The Learned Counsel would reiterate the case of the Defendant No.2 i.e.
Appellant before the Lower Appellate Court and would contend that in
absence of any information from the advocate, the Appellant became
aware of the suit being decreed only sometime in the year 2014 when the
said Yogesh Gawand informed the Appellant of the decree being passed.
The Learned Counsel sought to place reliance on the evidence of Yogesh
Gawand which was adduced in support of the said application for
condonation of delay, wherein the said witness according to the Learned
Counsel has mentioned the circumstances which resulted in him informing
the Appellant of the decree passed in the suit. The Learned Counsel also
sought to make submissions as regards the merits of the challenge in the
Appeal.
9. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. The question that is posed in the above
Writ Petition is whether the Respondent No.2 herein i.e. Appellant before
the Lower Appellate Court had made out a case for condonation of delay.
The foundation for the said Civil Misc. Application No.150 of 2014 has
already been referred to in the earlier part of this order. The reasons if any
are found in paragraph 5 of the said Civil Misc. Application, which reasons
as indicated above are to the effect that the Appellant had engaged an
advocate who according to him did not give him proper guidance as
BGP. 8 of 13
WP-9929-15.doc 28.10.2015
regards filing of Written Statement in the suit, who also did not inform
him of the decision of the suit. The said case as set out in paragraph 5 of
the application was sought to be supported by the evidence of the
Appellant himself and his witness Yogesh Gawand. In so far as the
evidence of the Appellant is concerned, he has stated in his examination-
in-chief that he visits Alibag often and he has property in village Awas
which is part of Taluka Alibag and close to the suit properties. In his
evidence he has sought to reiterate the case set out by him in paragraph 5
of the application namely that it is Yogesh Gawand who has informed him
about the decreeing of the suit. In so far as the evidence of said Yogesh
Gawand is concerned, he has deposed that he was the middleman for the
transaction between the Appellant and the Defendant No.1 i.e. Shantaram
Gawand along with one other person. He has stated that he had gone to
pay land revenue in the office of the Talathi on 07.11.2014 on behalf of
the Appellant when he came across the 7/12 extract of the lands in
question, wherein the name of the original Plaintiff was entered and on
inquiries it was revealed that the suit filed by the Plaintiff was decreed
pursuant to which the entry was made in the 7/12 extract. It has also
come in his evidence that except the Appellant he has not paid the land
revenue in respect of the land owned by any other person.
10. At this stage, it is required to be noted that the Appellant is a
BGP. 9 of 13
WP-9929-15.doc 28.10.2015
resident of Nepeansea Road, Mumbai and also owns property in Awas
village Taluka Alibag which is a weekend destination for many of the well
to do persons from Mumbai. The suit properties are situated in the close
vicinity in Taluka Alibag. The Appellant is therefore a person of means and
the fact that the Appellant has chosen to purchase another property
pending the instant suit shows that he is a person conversant with the
legal niceties as immediately after purchasing the property he has chosen
to file an application for his impleadment in the suit in the year 2010. The
Appellant therefore by no means can be said to be a lay person or a person
who can be said to be totally ignorant of the legal procedure. It is on the
touchstone of the aforesaid facts that the issue would have to be
considered. At this stage, it would be gainful to refer to the judgment of
the Apex Court in Basawaraj's case (supra). The Apex Court has after
referring to various judgments which are an exposition as to what
constitutes "sufficient cause" has summarised the law on the issue in
paragraph 15 of its judgment. The said paragraph 15 is reproduced
hereinunder :-
"15. The law on the issue can be summarised to the effect
that where a case has been presented in the court beyond
limitation, the applicant has to explain the court as to what
was the "sufficient cause" which means an adequate and
enough reason which prevented him to approach the court
within limitation. In case a party is found to be negligent,
or for want of bona fide on his part in the facts and
BGP. 10 of 13
WP-9929-15.doc 28.10.2015
circumstances of the case, or found to have not acted
diligently or remained inactive, there cannot be a justified
ground to condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any
condition whatsoever. The application is to be decided only
within the parameters laid down by this Court in regard to
the condonation of delay. In case there was no sufficient
cause to prevent a litigant to approach the court on time
condoning the delay without any justification, putting any
condition whatsoever, amounts to passing an order in
violation of the statutory provisions and it tantamounts to
showing utter disregard to the legislature."
11. The Apex Court therefore has held that in case a party is held
to be negligent or lacking in bona fides or not acted diligently or inactive,
there cannot be justified ground to condone the delay. In the instant case,
as indicated above, the Appellant has sought to put the blame on his
advocate. It is the case of the Appellant that the advocate did not give him
proper guidance in respect of the filing of the Written Statement and also
did not inform him about the decision in the suit. The said reason coming
from a person of the standing of the Appellant who has all the
wherewithal at his disposal cannot be accepted. The question that begs an
answer is what prevented the Appellant from making inquiries with his
advocate as regards the developments in the suit. It is very easy to blame
the advocate for whatever has transpired in the litigation. There is
absolutely no explanation forthcoming on the said aspect. It has to be
borne in mind that the Appellant is an educated person staying in an up
market area of Mumbai and also owning property at village Awas in
BGP. 11 of 13
WP-9929-15.doc 28.10.2015
Taluka Alibag which is a weekend destination of the well to do persons
from Mumbai. It has also come in the evidence of the Appellant that he
visits Alibag very often. The standard applicable to him obviously would
be different than say a lay villager. It is also required to be noted that
apart from purchasing the suit property pendent-lite, the Appellant also did
not whilst the suit was pending in the Trial Court take steps to file his
Written Statement nor there is anything on record to show that he made
any inquiries with his advocate about the suit. Such a conduct cannot be
countenanced of a person belonging to the Appellants standing. The
conduct of the Appellant is therefore one of gross negligence and also
indolence. The Appellant it seems has chosen to file the Appeal as per his
own convenience. A Court vested with the power of considering whether
discretion has been properly exercised cannot loose sight of such conduct.
The evidence of the witness of the Appellant Yogesh Gawand also does not
inspire confidence. As indicated above, the witness Yogesh Gawand has
stated that he was the middleman for the transaction that took place
between the Defendant No.1 and the Appellant i.e. Defendant No.2. How
he had chosen to pay the land revenue on behalf of the Appellant only in
the year 2014 also creates a doubt as there is no record of the said Yogesh
Gawand having paid the land revenue for any anterior period after the
Sale Deeds were executed in favour of the Appellant. The evidence of the
BGP. 12 of 13
WP-9929-15.doc 28.10.2015
said witness therefore seems to be somehow adduced to support the
application. The explanation put forth by the Appellant therefore does not
constitute sufficient cause. The Lower Appellate Court in my view, has
exercised discretion when the same was not warranted having regard to
the facts and circumstances of the case. The payment of costs cannot be a
panacea for the delay, when it is not properly explained. The above Writ
Petition would accordingly have to be allowed. Resultantly, the impugned
order dated 28.07.2015 is quashed and set aside. The Appeal which is
suffering from the said delay would accordingly stand dismissed. The
Petition is allowed to the aforesaid extent. Rule is accordingly made
absolute, with parties to bear their respective costs.
12. At this stage, the Learned Counsel for the Respondent No.2
seeks stay of the instant order so as to enable the Respondent No.2 to
approach the Apex Court. In the facts and circumstances of the case, the
instant order is stayed for a period of four weeks from date.
[R.M. SAVANT, J]
BGP. 13 of 13
