Bandu S/O. Bhagwanji Kamdi And ... vs Narayan S/O. Haribhajan Bhade And ...
2016 Latest Caselaw 3791 Bom

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                                                               sa155.16.odt

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                  NAGPUR BENCH, NAGPUR




                                                     
                      Second Appeal No.155 of 2016


      1. Bandu s/o Bhagwanji Kamdi,
         Aged about 45 years,




                                                    
         Occupation - Cultivator.

      2. Smt. Sindhu w/o Bandu Kamdi,
         Aged about 40 years,
         Occupation - Household.




                                         
      3. Shivlal s/o Devraoji Kamdi,
                             
         Aged about 55 years,
         Occupation - Cultivator.
                            
           All are resident of Waghoda,
           Tahsil Karanja (Ghadge),
           District Wardha.                            ... Appellants/
                                                           Ori. Defendants
      


           Versus
   



      1. Narayan s/o Haribhajan Bhade,  )
         Aged about 47 years,           )
         Occupation - Cultivator.       )
                                        )





      2. Smt. Vijaya w/o Narayan Bhade,)
         Aged about 40 years,           )
         Occupation - Cultivator.       )
                                        )
         Both are resident of Waghoda,  )
         Tahsil Karanja (Ghadge),       )





         District Wardha.               )              ... Ori.Plffs.

      3. Grampanchayat Waghoda,                        ... Ori.Deft.No.4
         through its Secretary,
         Waghoda, Tahsil Karanja (Ghadge),
         District Wardha.                              ... Respondents




    ::: Uploaded on - 15/07/2016                     ::: Downloaded on - 30/07/2016 09:12:17 :::
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                                                                         sa155.16.odt

      Shri P.W. Jasutkar, Advocate for Appellants.




                                                                                      
      Shri Rahul Dharmadhikari, Advocate for Respondent Nos.1 and 2.




                                                              
                    Coram : R.K. Deshpande, J.

                    Dated  : 13    July, 2016
                                th
                                              




                                                             
       Oral Judgment :

1. This Court had issued notice for final disposal of the

matter on 30-3-2016, for the reason that the lower Appellate Court

has dismissed the application for condonation of 90 days' delay

caused in filing the regular civil appeal, and if the order is set aside

by this Court, the matter will have to be considered on its own

merits. In response to the notice issued by this Court, Shri Rahul

Dharmadhikari, the learned counsel, appears for the respondent

Nos.1 and 2. None appears for the respondent No.3.

2. Admit, on the following substantial question of law :

Whether the lower Appellate Court was right in exercising

discretion not to condone the delay of 90 days in filing an appeal?

3. Heard finally by consent of the learned counsels

appearing for the parties.

sa155.16.odt

4. The decree is for removal of encroachment, and it was

passed on 10-8-2015 in Regular Civil Suit No.11 of 2014. The

appellants preferred regular civil appeal along with application for

condonation of 90 days' delay caused in filing an appeal. The

lower Appellate Court has rejected the contention that the

applicants were in a poor financial condition and for that reason

could not contest the suit. It is held that the law has taken care to

provide legal aid as per the provisions of the Legal Service

Authority Act, 1987. The lower Appellate Court has also held that

the applicants have filed vakalatnama of their Advocate and there

is no explanation for the delay caused.

5. It is a fact that the appellants did not contest the suit

before the Trial Court. The engagement of counsel before the Trial

Court is not a disputed fact, but due to non-payment of fees, the

counsel did not represent the appellants. At any rate, there is no

reason to reject the plea of the appellants that they came to know

about the decree passed by the Trial Court upon receipt of notice of

Regular Darkhast No.7 of 2012 and thereafter the application for

certified copy of the judgment and decree passed by the Trial Court

was made and the appeal was preferred. The explanation

furnished discloses the sufficient cause and being bona fide, was

required to be accepted by the lower Appellate Court. At the most,

sa155.16.odt

the lower Appellate Court could have imposed the costs for

condonation of delay.

6. In the result, the second appeal is allowed. The order

dated 23-2-2016 passed by the lower Appellate Court rejecting

M.A.R.J.E. No.212 of 2015, is hereby quashed and set aside. The

delay caused in filing an appeal is condoned. The matter is

remitted back to the lower Appellate Court to decide the same on

its own merits. Needless to say that it shall be open for the lower

Appellate Court to consider the conduct of the appellants in

deciding the matter. No order as to costs.

JUDGE.

Lanjewar, PS

CERTIFICATE

"I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."

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