Bombay High Court
Daddu S/O Ganesh Kuhikar vs Gendlal S/O Baliram Shende And ... on 29 April, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 496 OF 2012
Daddu Ganesh Kuhikar,
through L.Rs.
1] Laxmibai wd/o Daddu
Kuhikar, aged 65 yrs.,
Occu. Household.
2] Deepak Daddu Kuhikar,
aged 40 yrs. Occu. Agriculturist.
3] Pannalal Daddu Kuhikar,
aged 36 yrs., Agriculturist.
Nos. 1 to 3 R/o Salai Godni,
Post Wadad, Tah. Umrer,
Distt. Nagpur.
4] Satyawati Raghuram
Shendekar, aged 30 yrs. Occu.
Housewife, R/o Subhash Ward,
Ramtek Distt. Nagpur. APPELLANTS.
VERSUS
1] Gendlal Baliram Shende,
aged 37 yrs. Occu. Labour,
R/o C/o Bapurao Shambharkar
Buddha Mohalla, Rampur
(Hingna) Distt. Nagpur.
2] Avinash Shahadeorao Jadhao,
aged Major, Occu. Service, R/o
124, Ayodhya Nagar, Near Sai
Mandir, Nagpur. RESPONDENTS.
Shri A. D. Dangore, Advocate for the appellants.
Smt. Smita Deshpande, Advocate for respondent no.1.
Shri C. N. Deshpande, Advocate for respondent no. 2.
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CORAM: A. S. CHANDURKAR J.
Dated : APRIL 29, 2016.
ORAL JUDGMENT:
Admit. Heard finally with consent of learned counsel for the
parties.
2] The following substantial question of law arises for consideration:
Whether the appellate Court was legally justified
in refusing to condone the delay in filing appeal
under Section 96 of the Code of Civil Procedure,
1908 (for short the Code)?
3] The appellant is the original plaintiff who had filed Regular Civil
Suit No. 21 of 2003 praying that the sale deed dated 29.05.2002 executed by
the respondent no.1 in favour of respondent no.2 be set aside. A further
prayer for specific performance seeking execution of sale deed in respect of
the suit property in his favour was also made. The suit was dismissed by the
trial Court on 18.03.2009. The appellant filed appeal under Section 96 of the
Code along with an application for condonation of delay. By the impugned
order the appellate Court has refused to condone the delay and has dismissed
the application. Hence this Second Appeal.
4] Shri A. D. Dangore, the learned counsel for the appellant
submitted that the appellate Court had not considered the reasons assigned
by the appellant for condoning the delay. He submitted that it was the
specific case of the appellant that after obtaining the certified copy of the
judgment in Regular Civil Suit No. 21 of 2003 on 23.03.2009, he had
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engaged counsel for preferring an appeal. The application for condonation of
delay was duly sworn on 13.07.2009. However the concerned counsel did
not file the appeal. After making various enquiries the appellant took back
the case papers and thereafter filed the appeal along with another application
for condonation of delay on 07.04.2011. He further submitted that the
consideration of other proceedings and decree passed therein could not be a
reason for refusing to condone the delay in the present proceedings. He,
therefore, submitted that the order deserves to be set aside and the delay
deserves to be condoned.
5] Smt. S. P. Deshpande, the learned counsel for the respondent
no.1 and Shri C. N. Deshpande the learned counsel for the respondent no.2
on the other hand supported the impugned order. It was urged by them that
the decree passed in Regular Civil Suit No. 94 of 1999 which had been filed
by respondent no.1 seeking possession of the aforesaid property had attained
finality. No purpose would be served in condoning the delay. The learned
counsel referred to the proceedings in Regular Civil Suit No. 94 of 1999 and
Special Civil Suit No. 1473 of 2011 and submitted that the appellate Court
was justified in refusing to condone the delay.
6] Perusal of the application at Ex. 1 for condonation of delay
indicates that in paragraphs 1 and 2 thereof the appellant had assigned
reasons for the cause of delay. The earlier application for condonation of
delay which was sworn on 13.07.2009 was also placed on record. The
appellate Court while considering the prayer for condonation of delay has not
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considered the reasons assigned in the application. Merely by making
reference to the adjudication in other proceedings it has been held that the
delay was not satisfactorily explained. It is, therefore, clear that the
appellate Court has failed to consider the reasons assigned by the appellant
and has concluded that the same did not deserve to be condoned. There is
thus failure on the part of the appellate Court to consider the application in
its proper perspective.
7] Considering the averments made in paragraphs 1 and 2 of the
application for condonation of delay along with the fact that the earlier
application for condoning delay was duly sworn on 13.07.2009, it cannot be
said that the delay as caused was deliberate. The appellant cannot be made
to suffer for the fault of his counsel Thus accepting the reasons mentioned
in the application, a case has been made out for condoning the delay. The
substantial question of law is answered by holding that the appellate Court
committed an error in rejecting the application for condonation of delay.
8] In view of aforesaid the order dated 10.04.2012 passed in Misc.
Civil Application No. 276 of 2011 is set aside. Misc. Civil Application No.
276 of 2011 is allowed and the delay in filing appeal under Section 96 of the
Code stands condoned. The appellate Court shall consider the appeal filed
by the appellant on its own merits. The respective contentions of the parties
on merits are kept open for being considered by the appellate Court. The
Second Appeal is allowed in aforesaid terms. No costs.
JUDGE
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