Anil Sheshrao Lakhapurkar And ... vs Shyamrao Shiladin Jaiswal
2016 Latest Caselaw 3919 Bom

    40-J-WP-6688-15                                                                             1/4


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                            NAGPUR BENCH, NAGPUR.




                                                                
                              WRIT PETITION NO.6688 OF 2015


    1.  Anil Sheshrao Lakhapurkar 
         Aged about 40 years.  




                                                               
    2.  Shobha Vinayak Aswalkar 
         Aged about 45 years. 




                                                   
    3.  Alka Vijay Ugaokar 
         Age about 42 years,          
         All r/o Ravi Nagar, Amravati. 

    4.  Meena Dhananjay Ugaokar 
                                     
         Age about 41 years, 
         R/o Mainday Square, Yavatmal 
         Tq. and Dist. Yavatmal 
              

    5.  Archana Rajesh Nimbalkar 
         Age about 38 years 
           



         R/o Shastri Nagar, Ujjain.                                ... Petitioners. 

    -vs- 





    Shyamrao Shiladin Jaiswal, 
    Aged about 69 years, 
    R/o Ravi Nagar, Amravati, 
    Tq. & Dist. Amravati.                                          ... Respondent  





    Shri S. M. Vaishnav, Advocate for petitioners. 
    Shri D. O. Jaiswal, Advocate for respondent. 

                                                      CORAM  : A.S.CHANDURKAR, J. 

DATE : July 18, 2016 Oral Judgment :

Rule heard finally with consent of learned counsel for the parties.

The petitioners who are the appellants before the first Appellate

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Court are aggrieved by the order passed on 29/06/2015 rejecting the

application for condonation of delay in filing restoration application to have

their appeal restored. The trial Court on 31/03/2006 decreed the suit filed

by the respondent. This decree was sought to be challenged by the

petitioners under Section 96 of the Code of Civil Procedure, 1908. As there

was delay in filing said appeal, an application for condonation of delay came

to be filed. This application for condonation of delay was dismissed in

default on 01/07/2010. The petitioners therefore filed an application for

restoring the said application for condonation of delay. The Appellate Court

did not condone the delay in filing the restoration application. This order in

turn was challenged in W.P.No.3062/2011 and by judgment dated

01/08/2011, the delay in filing the restoration application came to be

condoned. Thereafter the Appellate Court has passed the impugned order

again refusing to condone the aforesaid delay.

2. Having heard the respective counsel, it can be seen that by

judgment dated 01/08/2011 in W.P.No.3062/2011, the delay of five months

and sixteen days in filing the restoration application came to be condoned

subject to payment of costs. It was further directed that if costs were paid

the application for condonation of delay would be taken up for consideration.

Admittedly the costs of Rs.5000/- have been paid by the petitioners. In this

backdrop therefore, there was no question of the Appellate Court again going

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into the aspect of delay. The delay in filing the restoration application

having been condoned, only the application for restoring the application for

condonation of delay ought to have been considered. As the impugned order

has been passed on a wrong premise, the same is liable to be set aside.

3. Accordingly, the order dated 29/06/2015 passed by the Appellate

Court is set aside. The proceedings are restored and the Appellate Court

shall consider the application for restoration of the application for

condonation of delay on its own merits. As the decree has been passed in the

year 2006, the aforesaid application shall be decided expeditiously and

within period of three months from today.

Rule is made absolute in aforesaid terms with no order as to costs.

           





                                                                          JUDGE





    Asmita 




     40-J-WP-6688-15                                                                           4/4


                                            -:  C E R T I F I C A T  E  :- 




                                                                                      

" I certify that this Judgment/order uploaded is a true and

correct copy of the original signed Judgment/order."

Uploaded by :

Asmita A. Bhandakkar Personal Assistant

Uploaded on :

19/07/2016