Bombay High Court
Zilla Parishad Parbhani Thr Its ... vs Yashodabai Asaram Bombale And Ors on 6 June, 2016
Bench: T.V. Nalawade
1 SA 698 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.698 of 2015
With
Civil Application No.15744 of 2015
1) Zilla Parishad Parbhani,
Through its Chief Executive
Officer, Zilla Parishad,
Parbhani.
2) Education Officer (Primary)
Zilla Parishad, Parbhani,.
3) Headmaster, Primary School
Village Digras,
Taluka & District Parbhani. .. Appellants.
Versus
1) Yashodabai w/o Asaram Bombale,
Age 70 years,
Occupation : Household,
R/o Digras,
Taluka and District Parbhani.
2) Sharda Sudamrao Giram,
Age 40 years,
occupation: Household,
R/o Porwad,
Taluka & District Parbhani.
3) Vishnu Asaram Bombale,
Age 29 years,
Occupation: Agriculture,
R/o Digras,
Taluka & District Parbhani.
4) Geeta Pandurang Chopade,
Age 26 years,
Occupation: Household,
R/o Brahmangaon,
::: Uploaded on - 10/06/2016 ::: Downloaded on - 30/07/2016 04:29:26 :::
2 SA 698 of 2015
Taluka & District Parbhani.
5) Subhadrabai Sudamrao Giram,
Age 27 years,
Occupation: Household,
R/o As above.
6) Govind Asaram Bombale,
Age 21 years,
Occupation: Agriculture,
R/o As above.
7) President,
Sarva Shiksha Abhiyan,
Digras,
Taluka & District Parbhani. .. Respondents.
--------
Shri. Vivek Bhavthankar, Advocate, for appellants.
Shri. S.B. Ghatol Patil, Advocate, for respondent No.3.
--------
CORAM: T.V. NALAWADE, J.
DATE : 6th JUNE 2016.
JUDGMENT:
1) The appeal is admitted. Notice after admission
made returnable forthwith. Taken up by consent for final
disposal.
2) The appeal is filed to challenge the order made
by the learned Ad-hoc District Judge-1 Parbhani in M.A.
3 SA 698 of 2015
(R.J.E.) No.357/2015. The application was filed for
condonation of delay of 287 days caused in filing appeal in
District Court against the judgment and decree of Regular
Civil Suit No.74/2010 which was pending in the Court of
the Civil Judge Senior Division Parbhani. The suit was
filed by the present respondents for the relief of
possession and injunction against the present appellants
and the suit came to be decreed on 11-9-2014.
3) The appeal came to be filed by the Zilla
Parishad along with delay condonation application after
expiry of the period fixed for filing appeal. After
considering the contentions made by the Zilla Parishad
regarding delay caused in filing the appeal, the learned
Ad-hoc District Judge rejected the application. It is held
that no sufficient cause is shown.
4) In view of nature of dispute, this Court had
asked the learned counsel representing the Zilla Parishad
to show something on the basis of which it can be said
that the Zilla Parishad had some right or interest in the
land. For the present purpose this Court has considered
4 SA 698 of 2015
photo copies of the so called gift document made by the
original owner and the so called resolution made by the
Village Panchayat of acceptance of the gift and of making
construction of Zilla Parishad school on the disputed land.
5) It appears that the application for getting
certified copy of the judgment and decree was made after
about 10 months though the appeal was filed within 12
days after getting the certified copy of the judgment and
decree from the trial Court. Learned counsel for the
respondents submits that at present there is nothing to
show that the Zilla Parishad is running school in the
disputed place. Some photographs in that regard are
produced on the record showing that the building is
abandoned and it is not having even the doors.
6) Nothing could have been achieved by the Zilla
Parishad by not filing appeal in time. It is noticed that
many counsels appointed by the local body and the
Government are not diligent. Possibility is there that the
decision was not informed to the Zilla Parishad in time.
Possibility that employees of the Zilla Parishad were not
5 SA 698 of 2015
diligent is also there. In such cases local bodies are
expected to take action like disciplinary action against
the employees. This Court expects that the Zilla Parishad
takes such action against the concerned.
7) In view of the aforesaid record and the
circumstance, this Court holds that opportunity needs to
be given to the Zilla Parishad to take decision of the
matter in first appeal on merits.
8) Though there are aforesaid circumstances, this
Court holds that delay can be condoned subject to
payment of cost of Rs.5000/- by the Zilla Parishad to the
original plaintiffs. The cost needs to be deposited in the
lower appellate Court.
9) The appeal is allowed. The order made by the
learned Ad-hoc District Judge-1 Parbhani in M.A. (R.J.E.)
No.357/2015 is hereby set aside. M.A.(R.J.E.) No.
357/2015 is allowed. Delay caused in filing first appeal
in the District Court is condoned. This order is subject to
condition of payment of cost of Rs.5,000/- (Rupees Five
6 SA 698 of 2015
Thousand only) by the Zilla Parishad within 30 days from
today in the District Court. If the cost amount is not
deposited it is to be presumed that present proceeding is
dismissed. If the cost is deposited, the appeal be
registered. The appeal is to be disposed of within six
months from the date of registration of the appeal. All the
points are kept open and the observations with regard to
copies of gift document and resolution are only for the
purpose of the present proceeding.
10) In the above terms the present appeal is
allowed and disposed. Civil Application stands disposed of.
Authenticated copy is allowed to both the sides.
Sd/-
(T.V. NALAWADE, J. )
rsl
